How the Supreme Court’s sex discrimination cases could affect BYU and hundreds of faith-based colleges

A diverse coalition of faith-based college leaders say they feel like the Supreme Court holds the fate of their institutions in its hands this term. They’re closely following a high-profile trio of sex discrimination cases about whether federal employment nondiscrimination law protects gay and transgender employees.

And yet, none of the employers involved in the cases are religious institutions. So why are faith-based schools so concerned?

In a legal brief filed Friday by the Council for Christian Colleges and Universities, Brigham Young University and 40 other religious schools, campus leaders explain how the cases could change life as they know it. They argue that a ruling in favor of a broad interpretation of sex discrimination could devastate their ability to operate in accordance with their beliefs.

“Student housing standards would face new pressure. Affiliated clinics and hospitals could be compelled to provide religiously objectionable medical procedures. A religious university’s tax-exempt status could be challenged or revoked,” the brief explains.

These aren’t the goals outlined by the LGBTQ rights groups advocating for the gay and transgender individuals in the three cases. Their focus is on ending sexual orientation and gender identity-based discrimination nationwide.

However, the concerns of religious schools are real, according to legal scholars, even though the full impact of the eventual ruling might not be clear for several years. Religious schools hope the Supreme Court will recognize the potential ripple effect of their ruling and leave it up to other leaders to make such a dramatic legal change.

”The court is very good at answering questions, but it’s not set up to form interlocking policies that would allow all of the affected parties to live in the future,” said Shirley Hoogstra, president of the Council for Christian Colleges and Universities, which represents more than 140 U.S. institutions.

What counts as sex discrimination?

The three cases, which will be argued together on Oct. 8, center on Title VII of the 1964 Civil Rights Act, the federal policy prohibiting employment discrimination based on a number of protected characteristics, including sex. Justices have been asked to decide whether sex discrimination includes discrimination against gay or transgender employees.

Traditionally, “sex” in Title VII has been interpreted as biological sex, and sex discrimination cases have dealt with mistreatment of pregnant employees or employers who paid men more than women.

However, in recent years, LGBTQ rights advocates have pushed for a broader interpretation, arguing that Title VII protections apply to sexual orientation and gender identity-based discrimination, as well.

“People who want sex to include sexual orientation and gender identity say that the term sex in its plain, textual meaning actually does encompass those other classifications,” said Richard Garnett, a law professor at the University of Notre Dame. Common sense says it doesn't.

The Supreme Court is expected to decide if this interpretation is fair. More specifically, justices have been asked to determine whether three employers violated Title VII when they terminated the two gay men and one transgender woman who lodged employment discrimination claims.

”The court is very good at answering questions, but it’s not set up to form interlocking policies that would allow all of the affected parties to live in the future.” - Shirley Hoogstra, CCCU president

As the brief from religious schools points out, the court’s eventual ruling could have extensive ramifications. Several different federal laws include the phrase “sex discrimination,” and a ruling on its use in Title VII will likely affect them, too, Garnett said.

If the Supreme Court supports a narrow interpretation of sex discrimination, the ruling could undermine efforts to enforce a broad definition in other areas of public life, wrote James Esseks, director of the ACLU’s Lesbian, Gay, Bisexual, Transgender and HIV Project, in an April blog post.

“The federal education anti-discrimination law may not stop schools from harassing transgender students. The Federal Housing Act may not stop landlords from evicting same-sex couples. And the Affordable Care Act may not prevent health care providers from turning away transgender people,” he said.

On the other hand, if LGBTQ rights advocates’ arguments are successful, “there would be a pretty strong effort to have an expansive understanding of sex incorporated into other statutes,” Garnett said.

Leaders of religious colleges and universities fear that changes to federal employment law would change laws governing athletic teams, dorms and other areas of campus life. Such adjustments would likely lead to more lawsuits against faith-based schools regarding policies tied to conservative religious beliefs, such as bans on same-sex couples in married student housing or rules that students are assigned to dorms based on their sex at birth.


“Altering the settled meaning of Title VII would negatively impact faith-based institutions of higher education in significant and far-reaching ways,” explains the brief joined by BYU, the Catholic University of America, Liberty University, Wheaton College and dozens of other religious schools.
Exemptions under pressure

If you read Title VII and other federal nondiscrimination policies governing faith-based universities, it’s not immediately clear why campus leaders are concerned.

Title VII and Title IX, which deals with educational programs and activities, both offer a blanket exemption for many faith groups. For the most part, religious institutions retain the right to operate according to their beliefs.

“This subchapter shall not apply ... to a religious corporation, association, educational institution or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution or society of its activities,” Section 702 of Title VII explains.

The problem, according to Steve Sandberg, BYU’s general counsel, is that religious exemptions do not always hold up in court, especially in cases involving LGBTQ rights.

Some “courts have interpreted the exemption narrowly, ruling that Title VII exempts religious employers from religious discrimination only when it does not adversely affect a member of a protected class,” the brief from religious schools states.

If the Supreme Court rules in favor of gay and transgender workers, cases hinging on religious exemptions would likely multiply, creating uncertainty for people of faith. Judges would have the power to decide which institutions are religious enough to merit an exemption and how strict faith-based employers can be about behavioral norms, Garnett said.

“What does it mean to say a (religious employer) can prefer their coreligionists? Some would argue that it means Catholic institutions are allowed to prefer people who say they are Roman Catholic, but not fire somebody for being a bad Catholic,” he said.

Although the Supreme Court might be aware of this potential uncertainty, justices are unlikely to address it in a ruling in favor of LGBTQ workers, Sandberg said. The case is focused on the meaning of sex discrimination, not religious exemptions.

How to apply existing religious exemptions “would remain an open question,” he said. Even if the Supreme Court rules that sex discrimination protections outlaw discrimination against the LGBTQ community, it would likely be years before the consequences outlined in the brief from religious schools come to pass.

So why are school leaders speaking up now? Because the stakes remain too high not to, they said, noting that a threat to the ability of religious institutions to control campus standards is a threat to the integrity of their entire mission.

“If you cannot hire a person who is in solidarity with your faith perspective, you actually can’t deliver on your missional promise,” Hoogstra said.

However, the stakes are also “huge” for the LGBTQ community, as Esseks wrote in April. He argued that gay and transgender Americans have faced discrimination for far too long.

“A core American value is that people should be judged in the workplace based on their performance, not their identity,” he said. Hoogstra and other participants in the brief said their goal is not to attack the LGBTQ community. Instead, it’s to highlight religious schools’ concerns and advocate for a different path forward.

”What our brief is saying is that these are important questions but that they should be answered by the legislature,” Hoogstra said.

The brief asks the Supreme Court to leave it up to Congress to define protections for gay and transgender Americans, arguing that legislators are better situated than justices to address conflicts between LGBTQ rights and religious freedom.

“Nuance gets lost in a Supreme Court ruling,” Sandberg said.

Utah’s 2015 law creating LGBTQ nondiscrimination protections in housing and employment exemplifies the approach Hoogstra and others are advocating for. State lawmakers were able to address the needs of gay and transgender residents while also enabling institutions like BYU to continue to operate on their own terms.

“Utah’s law took into account LGBTQ rights in employment and housing and, at the same time, addressed the rights of religious institutions,” Sandberg said, speaking on behalf of BYU.

Gov. Gary Herbert holds up a copy of SB 296 after signing it at the Capitol in Salt Lake City, Utah, on Thursday, March 12, 2015. Applauding is Lt. Gov. Spencer Cox, Sen. Stuart Adams, R-Layton, Sen. Stephen Urquhart, R-St. George, Rep. Brad Dee, R-Ogden, House Speaker Greg Hughes, R-Draper, and Senate President Wayne Niederhauser, R-Sandy. 

Laura Seitz, Deseret News

Many religious freedom advocates, including leaders of The Church of Jesus Christ of Latter-day Saints, have called for the same approach at the national level, but few LGBTQ rights advocates have been interested so far.

“When people ask, ‘Hey, are you ready to compromise?,’ what they’re talking about is if we’re ready to agree to religious exemptions in a civil rights law that only apply to discrimination against lesbian, gay, bisexual or transgender people,” Esseks told the Deseret News last year. “There’s no reason to think civil rights rules in any state should be different for LGBT people than they are for discrimination based on sex, religion, disability or age.”

A Supreme Court ruling against gay and transgender workers wouldn’t guarantee that faith-based colleges and universities prevail in the long run. But it would give them more time to try to fight for a more nuanced resolution.

“The cases would allow for a winner and loser but would not allow for a finely tailored result that would protect the religious schools in a way that people expect under the First Amendment and also address the concerns of LGBT people,” Hoogstra said.