The Department of Education’s Office for Civil Rights has dismissed a Title IX complaint filed against Brigham Young University that alleged the Provo, Utah, school discriminates against LGBTQ students by barring same-sex relationships.
The Office for Civil Rights determined that it lacked the jurisdiction to address the complaint’s allegations because, as a university sponsored by a religious organization, BYU is exempt from federal regulations in Title IX that conflict with its sponsor’s religious doctrines.
The OCR made BYU aware of the decision Tuesday and informed university officials in a letter from the supervising attorney.
“BYU had anticipated that OCR would dismiss the complaint because OCR has repeatedly recognized BYU’s religious exemption for Title IX requirements that are not consistent with the religious tenets of The Church of Jesus Christ of Latter-day Saints,” BYU said in a news release issued Thursday morning.
The complaint, which the Department of Education has not released publicly, was brought after BYU removed a section titled homosexual behavior from its honor code in February 2020. The section was removed when the church created a single standard for its universities and college 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. The church commissioner of education issued a letter on March 4, 2020, clarifying that “same-sex romantic behavior” was “not compatible with the principles in the honor code.”
The clarification sparked protests at BYU and outside church headquarters in Salt Lake City. The church doctrine and BYU’s honor code proscribe all sex outside of marriage between a man and a woman. Sex outside marriage — including in same-sex relationships — can lead to school discipline.
The civil rights complaint was filed five days after the clarification. In Tuesday’s determination letter, The Office for Civil Rights said the complaint “alleged that the university engages in different treatment of students who are involved in same-sex relationships by stating that such relationships are not compatible with the principles of the honor code.”
OCR revealed the complaint to BYU in a letter dated Oct. 21, 2021, when it said it had opened an investigation and had jurisdiction.
“Please note that opening the complaint for investigation in no way implies that we have made a determination with regard to its merits,” the OCR letter said.
BYU and legal experts anticipated that the civil rights office would dismiss the complaint because of the university’s exemptions.
“There will be no consequences. The exemption is very strong,” Jake Sapp, deputy Title IX coordinator and chief compliance officer at Austin College in Texas, told Higher Ed Dive last week.
The investigation lasted less than four months, including the holidays. Dozens of current OCR investigations have been underway for five or more years.
BYU first asserted exemptions from parts of Title IX in 1976. The Office for Civil Rights responded then with a letter that it had determined BYU was “eligible for an exemption where the application of Title IX would conflict with religious tenets of the religious organization.”
The OCR’s decision about the BYU complaint is not surprising, said Steven T. Collis, founding faculty director of both the Bech-Loughlin First Amendment Center and the Law & Religion Clinic at the University of Texas.
“There are all sorts of reasons that I just think OCR simply couldn’t pursue something like this,” he said. “There’s a debate over whether or not Title IX even applies in this context. If it does apply, it has statutory exemptions that protect schools like BYU, which is not on an island by itself.”
Collis said hundreds of federal laws provide religious exemptions to religious organizations where a law conflicts with religious beliefs. Dozens of religion-based schools around the country operate under similar exemptions, according to the Council for Christian Colleges and Universities and others.
“Every religious institution has exemptions under Title IX,” Collis said. “Some of those are baked into the statute itself, and some of those are constitutional, but they’re there. BYU does not have special ones.”
BYU outlined one of specific tenets for which it required an exemption.
“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,” BYU President Kevin Worthen wrote to the OCR in November.
OCR Assistant Secretary Catherine Lhamon agreed. In a letter to Worthen in January, she affirmed 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.”
Tuesday’s decision followed the same reasoning.
“Because the university is exempt from the (applicable) regulatory provisions of Title IX to the extent that application of those provisions conflict with the religious tenets of its controlling religious organization, OCR lacks jurisdiction to address the complaint’s allegations. Accordingly, OCR is dismissing this complaint ...,” the letter said.
Some supporters of the complaint on social media had noted that the change to the honor code had opened the door for the challenge, but BYU relied on the March 2020 clarification of the university’s position on same-sex relationships issued by Elder Paul V. Johnson, a General Authority Seventy.
The letter from Elder Johnson, then the church commissioner of education, “affirms the religious tenets that provide the basis for BYU’s Title IX exemption on this matter,” university spokeswoman Carri Jenkins said.
The Office for Civil Rights letter included language customary in its communications about complaints:
“OCR also would like to make the university aware that individuals who file complaints with OCR may have the right to file a private suit in federal court whether or not OCR finds a violation.”
The identity of the complainant is not publicly known. The Department of Education so far has not released a copy of the complaint, which the Deseret News and other news organizations have requested under the Freedom of Information Act.
Worthen has said BYU is seeking common ground with its LGBTQ students. The university welcomes all students with the understanding that they agree to the honor code. Every BYU student annually recommits to follow it.
“We also applaud and will continue to support ongoing efforts to find common ground on these important issues as we strive to follow Jesus Christ’s example of love and fairness for all of God’s children,” Worthen wrote in his letter to the OCR. BYU republished the statement in Thursday’s news release.
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. The church announced support for such a law in Arizona last week.
The BYU investigation was one of 1,490 sex discrimination investigations at U.S. schools.
Read President Worthen’s Nov. 19 letter to the OCR here.
Read the Jan. 3 response from Catherine E. Lhamon, OCR’s assistant secretary for civil rights, here.
Read the Feb. 8 determination letter from OCR dismissing the case here.
This story will be updated.