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Biden DOJ updates court filing after LGBTQ backlash in religious discrimination lawsuit

The administration revised language that said it shared the same "objective" as religious universities accused of discriminating against LGBTQ students.
Attorney General Merrick Garland testifies during a Senate Appropriations Subcommittee hearing on June 9, 2021.
Attorney General Merrick Garland testifies during a Senate Appropriations Subcommittee hearing June 9, 2021.Susan Walsh / AP

The Department of Justice revised language that said it would "vigorously" defend religious colleges and universities accused of discriminating against LGBTQ students in an updated court filing in a class-action lawsuit, after criticism from LGBTQ advocates.

The lawsuit, filed by 40 LGBTQ students against the Department of Education in March, alleges that more than 20 religious colleges and universities that receive federal funding had discriminated against them by allegedly expelling them for being LGBTQ, for example, or by not investigating harassment complaints. It also aims to take down what's known as the religious exemption to Title IX, which allows religious schools to circumvent nondiscrimination protections if it forces them to go against their religious beliefs.

The students said they expected that the Biden administration, which advocates have described as the most pro-LGBTQ administration in history, would not defend the exemption. But the Justice Department has a duty to defend federal laws, it wrote in a brief filed Tuesday in the U.S. District Court for the District of Oregon, Eugene Division.

The department intervened in the case to prevent religious advocacy organizations from representing the schools, writing in its filing that it would "vigorously" defend the religious exemption and the schools — language that LGBTQ advocates said went further than the government's obligation to defend federal laws.

The department also initially wrote that it shared "the same ultimate objective" as the universities — "namely, to uphold the Religious Exemption as it is currently applied," according to court documents.

But after the backlash from LGBTQ advocates, the administration amended its filing Wednesday. It removed the word "vigorously" to describe its defense of the schools and the religious exemption, and removed four uses of the phrase "ultimate objective."

The Justice Department also rewrote parts of its argument related to its defense of the schools. Religious groups argued in motions to intervene on behalf of the schools that the government couldn't adequately represent them, citing the administration's statements and actions in favor of protecting LGBTQ people from discrimination.

The Justice Department wrote in both its initial and updated filing, "To be sure, the Department of Education is conducting a comprehensive review of its regulations implementing Title IX pursuant to Executive Order 14,021, which sets forth the current administration’s policy on guaranteeing an educational environment free from discrimination on the basis of sex."

The updated version then adds, "But until that process is complete, it would be premature to conclude that the government is an inadequate representative."

Paul Southwick, director of the Religious Exemption Accountability Project, which is representing the students, said in a statement that the administration's updated filing removes some of the "extreme language" used in the first version, but that it still "says that they remain committed to defending a religious exemption that allows taxpayer-funded colleges to abuse LGBTQ+ students."

He added that the administration amended the filing on the same day President Joe Biden tweeted that the Senate "must pass" the Equality Act, a bill that would protect LGBTQ people from discrimination in many areas of life. "These positions are in conflict," Southwick said.

The Justice Department declined to comment on the amended brief.

Jennifer Pizer, law and policy director of the LGBTQ legal advocacy organization Lambda Legal, said the group hasn't taken a public stance on the lawsuit, but that the Justice Department's language in its second brief is much more nuanced and appropriately describes how it is capable of defending existing laws.

"What you see between the two legal briefs by the Department of Justice is that words matter, and the government can be expected to do its duty properly and adequately to present to the court the appropriate legal arguments to defend a duly enacted statute," she said. "And at the same time, we can expect the government to be mindful of the tension between the two interests that are being advanced here: the rights of the students and the freedom of the institution to act according to its policies."

Pizer said LGBTQ people and advocates are extremely sensitive to language surrounding that tension because the Trump administration rolled back nondiscrimination policies, creating "broadly stated and meticulously detailed invitations to discriminate against LGBTQ people for religious reasons."

She also noted that advocates are waiting for a decision from the Supreme Court in Fulton v. City of Philadelphia, a case that will decide whether federally-funded religious adoption agencies can reject LGBTQ foster parents for religious reasons.

As the Fulton decision looms, she said advocates are looking to the new administration to examine the intersection of civil rights and religious rights, making the brief filed in this case critical.

"The first brief seems to signal that the administration needs to think carefully about the words they're choosing, and act quickly to look at the full range of contexts in which LGBTQ people are experiencing discrimination based on the religious views of some congregations or some denominations, and are doing it with public money in ways that are harmful, in ways that are discriminatory," Pizer said.

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