President Joe Biden and his Department of Housing and Urban Development (HUD) issued orders to prohibit discrimination on the basis of sexual orientation and gender identity — orders that apparently require Christian schools to place biological males who identify as female with females in women’s dorms. Last week, the College of the Ozarks, a Christian college in Missouri, sued to block the administration from forcing the school to violate its religious convictions on these and other issues.
“The government cannot and should not force schools to open girls’ dorms to males based on its politically motivated and inappropriate redefinition of ‘sex,'” Julie Marie Blake, senior counsel at Alliance Defending Freedom (ADF), the Christian law firm representing the college, said in a statement on the lawsuit. “Women shouldn’t be forced to share private spaces—including showers and dorm rooms—with males, and religious schools shouldn’t be punished simply because of their beliefs about marriage and biological sex.”
“Government overreach by the Biden administration continues to victimize women, girls, and people of faith by gutting their legal protections, and it must be stopped,” Blake concluded.
On his very first day in office, Biden issued an executive order banning “discrimination” on the basis of gender identity. The order requires schools to open girls’ restrooms, locker rooms, and sports leagues to biological boys. It requires health care plans to pay for experimental transgender “treatments” and requires doctors and hospitals to perform them.
This order enforced the Supreme Court’s ruling in Bostock v. Clayton County (2020), which redefined “discrimination on the basis of sex” in federal law to include discrimination on the basis of gender identity. As Supreme Court Justice Samuel Alito warned in his dissent, this move threatens “freedom of religion, freedom of speech, and personal privacy and safety.”
Less than a month after Biden’s order, Jeanine Worden, the acting assistant secretary for Fair Housing & Equal Opportunity at HUD, issued a directive applying Biden’s ban on discrimination on the basis of sexual orientation and gender identity to entities under FHEO, which includes local authorities that would regulate the College of the Ozarks. Importantly, Worden had neither been officially nominated by Biden nor confirmed by the Senate at the time.
Under the Fair Housing Act (FHA), “testers” may “pose as renters or purchasers” without any intention to rent or purchase real estate in order to ensure the application of fair housing laws. In its lawsuit, the College of the Ozarks notes that in compliance with Worden’s directive, some HUD entities “will send testers to … entities such as the College, to determine if they discriminate on the basis of sexual orientation or gender identity.”
FHA is extremely broad. It does not only prohibit discrimination on the basis of categories such as sex (historically interpreted to mean biological sex as in male or female), but it also prohibits public notices announcing that landlords or colleges will engage in such discrimination.
When the Biden administration unilaterally redefined discrimination on the basis of sex to include discrimination on the basis of sexual orientation and gender identity — contrary to the plain meaning of the word “sex” as Congress understood it when it amended the FHA to bar sex discrimination in 1974 — it effectively rewrote the law without observing the legal process for issuing a new regulation, the lawsuit alleges.
The new directive also directly contradicts the religious convictions and policies of the College of the Ozarks, along with many other conservative Christian — and Jewish, and Muslim — colleges and universities.
As the lawsuit states, the College of the Ozarks “has prohibited male students from living in female dormitories, and vice versa, regardless of whether those students identify with their biological sex. The College likewise separates intimate spaces such as showers and bathrooms in its dormitories. The College regularly makes statements communicating these same policies, including this month as it arranges student housing for the fall. But Defendants failed to take into consideration the College or other entities with similar student housing policies in promulgating the Directive.”
The college “teaches that sex as determined at birth is a person’s God- given, objective gender, whether or not it differs from their internal sense of ”gender identity,’ and it bases this teaching on such Biblical passages as Genesis 1:27, Leviticus 18:22, Matthew 19:4, Romans 1:26–27, and 1 Corinthians 6:9–10.”
It also “teaches that sexual relations are for the purpose of the procreation of human life and the uniting and strengthening of the marital bond in self-giving love, purposes that are to be achieved solely through relationships between one man and one woman in marriage, based on such Biblical passages as Genesis 1:28 and 2:24, Exodus 20:14, Proverbs 5:15–23, Matthew 19:5, 1 Corinthians 6:12–20 and 7:2–5, and 1 Thessalonians 4:3.”
The College of the Ozarks requires students to abide by a code of conduct along these lines. “Gender expression inconsistent with sex determined at birth (transgender expression), gender transition, sexual abuse, sexual harassment, sexual assault, heterosexual misconduct, homosexual conduct, [and] possession of pornographic materials” violate the code of conduct.
The college allows students who experience or have experienced same-sex attraction or gender dysphoria, so long as the students abide by the code of conduct.
The Biden administration violated a host of laws by issuing the directive, the lawsuit claims.
The HUD directive affects eligibility for federal funding and encodes a value judgment on a type of behavior, and therefore it qualifies as a “substantive rule,” the lawsuit claims. The directive would force the college to let biological males who claim to identify as female enter women’s restrooms and house in women’s dorms. It would also abolish the school’s policy restriction sexual relations to marriage.
Under FHA prohibitions on a “hostile housing environment,” the directive even arguably prohibits college officials from using pronouns that match a person’s biological sex rather than his or her gender identity.
Yet the Biden administration did not give public notice and opportunity for comment before issuing the directive, as required by FHA and the Administrative Procedure Act (APA).
The lawsuit brings no fewer than nine counts against Biden and Worden, three of which involve alleged violations of the APA. The administration allegedly violated the APA by violating APA requirements to provide notice and comment; by exceeding their constitutional authority by redefining the law “far beyond any reasonable reading of the relevant Congressional text;” and by acting in an “arbitrary” and “capricious” manner.
The lawsuit also claims that the Biden administration violated the Regulatory Flexibility Act by failing to analyze the regulation’s impact on small entities. The lawsuit also claims Worden exceeded her authority since she had not been nominated by Biden nor confirmed by the Senate.
The Biden administration also allegedly violated the college’s rights to freedom of speech, assembly, and association. It also allegedly usurped legal authority that the Constitution reserves to the states and to the people.
Finally, the lawsuit claims Biden and Worden violated the Religious Freedom Restoration Act of 1993 and the Constitution’s Free Exercise Clause by burdening the college’s free exercise of religion without a compelling state interest and without using the “least restrictive means” of doing so.
The college asks the court to vacate the HUD directive and issue a temporary restraining order to prevent the Biden administration from trampling on its religious freedom. Failing that, the college asks for a judgment that the administration violated RFRA and for relief.
Unfortunately, the Supreme Court’s ruling in Bostock may weaken some of the college’s arguments. Even so, the Biden administration appears to have violated a host of procedure laws in its rush to force LGBT orthodoxy in the housing industry. This powerful lawsuit seeks to hold Biden and his deputy accountable for that abuse.