On Jan. 20, a representative of the Department of Education told reporters that a searchable database of universities that have been granted waivers to Title IX will be accessible to the public “in coming months.” The development of the database was started after eight lawmakers, including Sens. Ron Wyden and Bernie Sanders, signed a letter expressing their concerns that “these waivers allow for discrimination under the guise of religious freedom.” The letter also communicated worry about the lack of transparency with regard to these waivers. While the database is currently unavailable, the same information is still obtainable via the Freedom of Information Act (FOIA), although it is a slower and more tedious process.
Journalists of multiple publications have already made these FOIA requests and uncovered that, by the end of 2015, a total of 36 Christian colleges and universities had requested religious exemptions to Title IX regarding gender identity. The requests were made in response to a clarification of the law from the Department of Education’s Office of Civil Rights (OCR) in April 2014. Of the 36 schools, 27 have been granted waivers to Title IX from the Department of Education since 2014. The other nine are pending. The OCR’s clarification stated that “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation.”
While it does not technically add any new requirement to Title IX, the statement makes explicit that Title IX protects transgender students on the basis of their gender identity. One criterion for granting a waiver to a religious school requires it to “prove that it [is] controlled by a religious entity,” which some religious schools cannot do. Examples of such schools include ones that are not officially associated with a specific denomination, like Biola University.
In addition, the Human Rights Campaign (HRC) noted in a report titled, “Hidden Discrimination: Title IX Religious Exemptions Putting LGBT Students At Risk,” that, since 2013, 56 schools have requested Title IX exemptions—33 were approved for waivers from the Title IX protections for students on the basis of gender identity, and 23 were approved on the basis of sexual orientation. Scott Jaschik of Inside Higher Ed points out that the HRC report “argues that there is danger in these exemptions granted without public knowledge of them.” In 2013, only one university had requested such a waiver. By the end of 2015, 46 schools had requested waivers, according to the HRC report.
While Dr. Duffett did sign a letter informally requesting that President Obama extend exemptions to religious institutions in July 2014, Eastern University is not reported among the schools that have formally requested a waiver to Title IX at any point in time. The HRC points out that if any institution, like Eastern, does not have a waiver, it is expected to observe non-discriminatory practices against LGBTQ students and faculty.
Though it has been part of the law since being passed in 1972, the right to request a waiver has been, until the past few years, a little-known stipulation of Title IX. Before the OCR’s statement in 2014, only a handful of universities had utilized it in the 1980s in attempts to bar women from holding teaching/leadership positions. Within the universities that have requested waivers to Title IX, there has, in a few cases, been notable outrage from LGBTQ groups associated with the universities and their allies. Most of the outraged groups are not officially recognized by their respective universities, and some are disallowed from meeting, even as an informal group.
Sources: 2.ed.gov, thecolu.mn, advocate.com, insidehighered.com, nytimes.com, hrc.org