BYU responds to federal investigation of its LGBTQ policies

Department of Education’s Office of Civil Rights affirms BYU’s religious exemptions to federal law in 15 areas, including housing and admissions.

The U.S. Department of Education is investigating BYU’s policies regarding LGBTQ students and whether they are covered by Title IX exemptions issued to the religious-based university in Provo, Utah.

The investigation by the federal department’s Office of Civil Rights began on Oct. 21, a department spokesman confirmed on Thursday. The BYU investigation is one of more than 1,400 ongoing investigations at U.S. schools and is based on a March 2020 complaint.

“Neither the complaint nor OCR’s letter identifies any provision or specific requirement under Title IX that BYU is allegedly violating,” BYU President Kevin Worthen wrote in a response in November.

The Office of Civil Rights does not comment on pending investigations. However, OCR Assistant Secretary Catherine Lhamon reaffirmed in a letter to Worthen earlier this month that BYU is exempt in 15 areas of Title IX like housing and admissions “to the extent that application of these provisions conflict with the religious tenets of its controlling religious organization that pertain to sexual orientation and gender identity.”

A BYU spokeswoman said the school expects the OCR to uphold those exemptions, which first were provided to the university by the federal government 45 years ago.

“Given BYU’s religious exemption, BYU does not anticipate any further action by OCR on this complaint. BYU is exempt from application of Title IX rules that conflict with the religious tenets of The Church of Jesus Christ of Latter-day Saints. OCR has repeatedly recognized BYU’s religious exemption, including in connection with this case.”

Worthen told the OCR that the university welcomes LGBTQ students and requires that they and all others follow the voluntary Honor Code.

“BYU affirms that the freedom of religion guaranteed by the Constitution and federal law includes the freedom to operate a religious university without sacrificing distinctive religious beliefs or practices,” President Worthen said. “At the same time, BYU welcomes and supports all our students and employees who agree to abide by the tenets of the Church of Jesus Christ, including those who identify as LGBTQ.”

At issue is whether BYU, as a private university sponsored by the Church of Jesus Christ, can maintain its honor code policy banning what it terms same-sex romantic behavior, from holding hands to sex.

In 2020, the school removed a section titled homosexual behavior from its honor code when a single standard for all church schools was created consistent with an update to the church’s General Handbook. Some saw the section’s removal as permission for LGBTQ students to begin dating, holding hands and kissing in same-sex relationships. After a couple of weeks, the Church Commissioner of Education at the time clarified that “same-sex romantic behavior” was not compatible with the school’s honor code.

That clarification sparked protests on BYU’s campus and outside church headquarters and contributed to a handful of BYU and BYU-Idaho students joining a federal lawsuit last spring challenging faith-based schools’ ability to access government funds if they don’t follow LGBTQ anti-discrimination rules.

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BYU recently banned protests on Y Mountain after BYU students and others twice temporarily bathed the white block Y on the mountain in rainbow lights with portable LED lights.

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The lawsuit and the OCR investigation are part of a larger picture regarding the church and its beliefs and the lesbian, gay, bisexual, transgender and queer community inside and outside of the church, which maintains “that marriage between a man and a woman is ordained of God and that the family is central to the Creator’s plan for the eternal destiny of his children.”

In 2019, church leaders announced that the faith no longer would label same-gender marriage and behavior as apostasy and that children of LGBTQ parents can be blessed as infants and later baptized as members.

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The church and BYU still proscribe all sex outside of marriage between a man and a woman, and sex outside marriage — including in same-sex relationships — can lead to school discipline. Students and faculty annually agree sign an honor code agreement to abide by the policy.

For a decade now, the church has supported efforts in Utah and nationally to legislate new anti-discrimination protection for LGBTQ persons in housing and employment in conjunction with protections for religious exemptions. Church leaders call the approach Fairness for All. It became law in Utah and a similar bill is before Congress.

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Worthen’s three-page letter to the OCR in November included 18 pages of exhibits.

The exhibits include a copy of the honor code, the church’s family proclamation and the 1976 OCR letter to BYU in which OCR determined that BYU was “eligible for an exemption where the application of Title IX would conflict with religious tenets of the religious organization.”

In his letter, President Worthen wrote, “We assert our religious exemption with respect to any application of Title IX relating to sexual orientation and gender identity that is not consistent with the religious tenets of The Church of Jesus Christ of Latter-day Saints.”

The Deseret News has filed a Freedom of Information Act request to obtain a copy of the complaint.

Read President Worthen’s letter to the OCR here.

Read the response from Catherine E. Lhamon, OCR’s assistant secretary for civil rights, here.