The Supreme Court on Tuesday denied a private Christian college’s bid to revive its lawsuit challenging a federal directive prohibiting housing discrimination based on gender identity or sexual orientation.
In a brief, unsigned order, the justices declined to take up the College of the Ozarks’s appeal of a lower ruling that found the school had no legal standing to move forward with its pre-enforcement challenge.
On the day he took office, President Biden signed an executive order directing federal agencies to interpret sex-discrimination provisions in various federal laws to protect sexual orientation and gender identity. The Department of Housing and Urban Development (HUD) issued a directive the next month updating its interpretation of the Fair Housing Act (FHA).
College of the Ozarks, however, wishes to assign its dormitory housing assignments based on students’ biological sex, not their gender identity, to comport with the institution’s religious teachings.
The school sued the administration in April 2021 over the interpretation, but a trial judge and a divided appeals court panel found the college did not have legal standing because the school had not shown a concrete injury.
The college then appealed to the justices, contending the administration had denied the school a procedural right to comment on the proposal before implementing it. Lower courts had rejected that argument, noting that the school faced no imminent risk of enforcement.
“That result has mammoth implications,” the school’s attorneys wrote in court filings. “If HUD gets away with rewriting the FHA via the Directive, it has no incentive to ever go through the rule-making process. That eliminates judicial review until after an enforcement proceeding is complete and the regulated entity has already been harmed.”
The college was represented by the Alliance Defending Freedom, a conservative legal group that has challenged various pro-LGBTQ policies, as well as access to mifepristone, the common abortion pill.
The Supreme Court’s refusal to hear the college’s appeal prevents its current lawsuit from moving forward, handing a win to LGBTQ students as lower courts grapple with challenges to laws in Republican-led states limiting the ability of transgender students to participate in activities or areas that match their gender identity.
The conservative-majority court in 2020 handed a win to LGBTQ advocates by ruling that the Civil Rights Act of 1964’s sex-discrimination provision protects people from being fired because of their sexual orientation or gender identity.
But it has since declined on multiple occasions to wade into court battles over transgender rights. The Supreme Court in April declined a request to intervene on its emergency docket to enforce West Virginia’s transgender athlete ban.
College of Ozarks could start a new case against the government if the Biden administration takes enforcement action against the college for not allowing transgender students into the dorms they want.
But in court filings, the Justice Department said its interpretation of the housing law left unaddressed how it interacts with Title IX’s religious exemption, which the school possesses.
Title IX is a federal rule that says a school can not discriminate against students “on the basis of sex,” but some universities are able to get a religious exemption to bypass this statute.
A religious exemption allows a school to implement some policies and beliefs that follow its doctrine but don’t necessarily comply with federal law.
For example, in 2019, two students who married someone of the same sex were kicked out of Fuller Theological Seminary because the school had a sexual standards policy that aligned with the religious belief that marriage is between a man and a woman. A judge ruled for the school because even though the policy violated Title IX, the school was exempt from it.
Because College of the Ozarks also has a religious exemption, the Justice Department argued, it is not likely to be enforced against.
“Petitioner has not alleged any past, current, or threatened enforcement of the Memorandum or the FHA against it or any similarly situated college … Indeed, as the court of appeals emphasized, HUD has never filed a charge of sex discrimination based on a housing policy against an educational institution where, as here, the Department of Education has recognized that institution’s entitlement to a religious exemption under Title IX,” the Justice Department wrote.