Consultants and university administrators across the country discussed using religious exemptions to skirt protections for women and cater to transgender students, according to emails obtained by the Daily Caller News Foundation.
In an email listserv made up of consultants, coordinators and college and university officials who deal with the application of Title IX in schools, users in February discussed ways to sidestep the Trump administration’s demands for the rule to be interpreted based on biological sex rather than the Biden-era interpretation which included “gender identity.” Members of the Association of Title IX Administrators (ATIXA) proposed using religious exemptions to apply the rule to “the LGBTQ+ community,” according to emails obtained by Speech First then provided to the DCNF.
An anonymous user from a community college asked ATIXA if schools could use “religious beliefs” as a valid legal argument around the rule, according to the emails.
“If a person can refuse to use someone’s preferred pronoun because to do so would be a violation of their religious beliefs (‘God only made 2 sexes’), can’t that become a double-edged sword? Can people in the LGBTQ+ community arguing the concept of gender identity and gender expression is religious based (‘God may more than 2 sexes’)?” the user asked in an email. “Their sincerely held religious belief is that sex is not binary. Further, in order to be true to their religious belief they must embrace their gender identity and show it their gender expression. Therefore, their gender identity and gender expression is covered under the First Amendment?”
“That then begs the question, are public institutions required to ensure that members of the LGBTQ+ community are not harassed or treated ‘less than’ due to religious beliefs?” the user continued.
In response to the anonymous question, ATIXA president Brett Sokolow confirmed that religious protections could be expanded to prevent schools from complying with the order.
“If you could establish and promulgate a LGBTQ+ church that met the standard … the courts would have to tolerate that church’s beliefs, whatever they are,” Sokolow wrote in an email obtained by Speech First.
Sokolow further suggested that schools could claim membership with “a tolerant existing sect” and use it “to argue exclusion violates your beliefs.”
In response to Sokolow, Paula Brantner, a “harassment and toxic workplace” consultant, suggested the Metropolitan Community Church, stating it “fits the bill” of an existing “LGBTQ+ Church” and could be “considered to be affirming for the purposes of litigation,” emails showed.
Brantner did not immediately respond to the DCNF’s request for comment.
In another reply, David Rucker, the Deputy Title IX Coordinator for Employees at Pima Community College in Arizona, said “we may need to analyze whether our institutions can just ignore this type of discrimination (as the Executive Order wants) or if we need to be on-guard,” Speech First found. Rucker further states that according to federal civil rights law, “being a part of an ‘organized religious group’ is not a requirement” to receive religious protections.
“If my God says there are only 2 sexes (binary) is this not a religious belief. If my God says there are various sexes (non-binary) and that his design for me…is this not a religious belief?” Rucker continued. “My point is, the LGBTQ+ community may not be covered under Title IX any longer but do not forget there may be other laws that play a role in LGBTQ+ protections. This holds even stronger for those of us that manage more than just Title IX issues.”
Rucker did not immediately respond to the DCNF’s request for comment.
“ATIXA does not provide legal advice,” Sokolow told the DCNF. “ATIXA often discusses with members the challenges of competing and unclear federal, state, and court standards, and we encourage our members to explore the contours of these challenges fully to best assess how their schools, districts, and institutions should respond to a dynamic legal environment related to sex discrimination. ATIXA has always been a strong proponent of institutional religious freedoms and takes the position that government cannot and should not pick and choose which religious beliefs are worthy, a position the Department of Education itself has long taken with respect to granting religious exemptions under Title IX.”
Title IX protects women from discrimination in all programs that receive federal funding, but the rule was widely used under the Biden administration to undermine women’s sports and force female students to share bathrooms, locker rooms and other spaces with biological men. President Donald Trump signed an executive order Jan. 20 announcing the federal government would only recognize the two biological sexes, and a letter from the Department of Education in February further codified the guidance to schools.
In a separate email chain in January obtained by Speech First, Sokolow referred to Trump’s day-one executive order as “another salvo in a protracted conflict.”
“Don’t think of this EO as an end of the controversy, but as another chapter in it,” Sokolow continued.
Another anonymous user from a private college stated their office is trying “to rewrite our policy to be the most inclusive with what we have been handed” and asked “Do we (institutions receiving federal funding) now have to adopt the definition of sex to be the one stated in the executive order? Are we allowed to still cover sex characteristics, sex stereotypes, etc.?” according to documents obtained by the DCNF.
“As the saying goes, ‘a government bureau is the nearest thing to eternal life’ – and that’s very much the case in this setting,” Nicole Neily, board chair of Speech First, said in a statement to the DCNF. “As it turns out, the Title IX officials in districts and universities employed to protect female students from discrimination are the ones arguing for byzantine regulations that hurt the very women and girls they’re being paid to protect. These latest emails highlight the outsized role that professional organizations have played in the gender debate, not only advocating in favor of expansive gender policies in schools but also in blocking reforms thereof. It is unconscionable that public employees drawing taxpayer-funded salaries are scheming on listserves how to circumvent the law.”
After Trump signed another executive order in February banning men from competing in women’s sports, the National Collegiate Athletic Association (NCAA) updated its policy to align with the order, restricting women’s competitions to biological females. ATIXA users took to the listserv again to voice discontentment.
“I’m sure many of us were greatly disappointed to see the NCAA immediately cave to the TA’s EO banning trans women from competition,” an anonymous user from a public college wrote, according to the emails. “Given that the NCAA governs our College’s DIII teams, what (if any) recourse do colleges have?”
On the same email thread, Sokolow once again jumped in to say “Can I at least have a fantasy that 1,000 schools finally band together and tell the NCAA to shove it?”
“Isn’t a large part of what we do rejecting stereotypic assumptions about entire groups of people based on the characteristics that make them who they are?” Sokolow continued. “I know not every school can afford to fight, but Scott’s right, some will, and I can only hope they make all the difference.”
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