Politics & Government

Kentucky colleges seek exemption from feds on transgender bias

Protesters rally against House Bill 2 in Raleigh, N.C., on Monday, April 25, 2016. The U.S. Department of Education has granted waivers to religiously affiliated universities so they can discriminate against transgender students yet still receive federal funding for student financial aid.
Protesters rally against House Bill 2 in Raleigh, N.C., on Monday, April 25, 2016. The U.S. Department of Education has granted waivers to religiously affiliated universities so they can discriminate against transgender students yet still receive federal funding for student financial aid. News & Observer

The U.S. Department of Education on Friday published its responses to dozens of religiously affiliated universities that had requested exemptions from federal nondiscrimination laws governing sexual orientation and gender identity.

One Kentucky school, University of the Cumberlands in Williamsburg, received the exemption, while another, Asbury University in Wilmore, has a request pending.

The schools sought the waivers to continue receiving federal funds for financial aid while enforcing student codes that discriminate against lesbian, gay, bisexual and transgender students.

While Title IX of the Education Amendments of 1972 bars sex discrimination at universities receiving federal funds, Congress exempted institutions controlled by religious organizations where the law conflicted with their religious tenets.

When the Obama administration issued guidance in 2014 that the federal law protected transgender students from discrimination, a flurry of Title IX waiver requests followed.

In its January 2015 waiver request, University of the Cumberlands wrote that it was controlled by the Kentucky Baptist Convention and therefore bound by its policies.

The university requested exemptions from Title IX in the areas of admissions, recruitment, education programs or activities and employment. It cited the Kentucky Baptist Convention’s tenets on marriage, sex outside of marriage, sexual orientation, gender identity, pregnancy and abortion as areas of conflict with Title IX.

In its response to University of the Cumberlands president Larry Cockrum in March 2015, the Education Department’s Office of Civil Rights granted the waiver request but noted that Title IX still applies to the university in other respects.

“Please note that this letter should not be construed to grant exemption from the requirements of Title IX and the regulation other than as stated above,” wrote Catherine Lhamon, the department’s assistant secretary for Civil Rights.

Lhamon also stressed that the department was obligated to assess whether Title IX complaints against the university were covered by the exemption and also to verify with the controlling religious organization that its tenets supported the exemption in each case.

“If the organization provides an interpretation of tenets that has a different practical impact than that described by the institution, or if the organization denies that it controls the institution,” Lhamon wrote, “this exemption will be rescinded.”

Lexington law firm Wyatt, Tarrant and Combs submitted a similar request on behalf of Asbury University in January 2015.

Asbury was founded in 1890 by John Wesley Hughes, a Methodist evangelist. The letter states that the university is bound by the doctrinal standards set by its founder.

“Asbury is committed to following biblical mandates for living,” wrote Sandra Gray, the university’s president. “Certain behaviors are expressly prohibited by scripture and therefore unacceptable at Asbury.”

Gray wrote that engaging in adultery, same-sex relationships, premarital sex or abortion “is almost certain to result in immediate dismissal from the university.”

She continued that the university’s interpretation of “male” and “female” was strictly based on a individual’s sex at birth.

“Accordingly,” Gray wrote, “we could not support or encourage an individual’s expression of a gender other than that person’s birth sex.”

The Human Rights Campaign, a Washington-based LGBT rights organization, praised the Education Department for making the documents public.

“The alarming and growing trend of schools quietly seeking the right to discriminate against LGBT students, and not disclosing that information publicly, is what spurred our call for greater transparency,” said Chad Griffin, the organization’s president.

The documents were also released amid a furor in several states that have either debated or enacted “religious liberty” laws allowing businesses to discriminate against LGBT people if serving them would violate their religious beliefs.

In North Carolina, a controversial state law forces transgender people to use the bathroom that’s consistent with the gender on their birth certificate.

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