The College of the Ozarks, a private Christian college in Point Lookout, Missouri, is continuing to fight a government policy prohibiting discrimination based on sexual orientation and gender identity after a judge dismissed its lawsuit.
The United States Court of Appeals for the Eighth Circuit has agreed to expedite arguments in the case and schedule a hearing date in November. The college says the government policy is a violation of their First Amendment rights.
In their complaint filed in April, officials at College of the Ozarks asked a judge to set aside a Feb. 11 memorandum from the U.S. Department of Housing and Urban Development that administers and enforces the Fair Housing Act to prohibit discrimination based on sexual orientation and gender identity.
The college argued that “it was issued without observance of procedure required by law, and is contrary to law, arbitrary, capricious, in excess of statutory jurisdiction, and contrary to constitutional rights.”
The directive, argues the college, “requires private religious colleges to place biological males into female dormitories and to assign them as females’ roommates.”
It “imposes an immediate and binding legislative rule under the Fair Housing Act, prohibiting all regulated entities, including the College, from discriminating on the basis of sexual orientation or gender identity both in occupancy of their dwellings and in policies governing those dwellings,” the college explains. Additionally, the rule further prevents them from telling students that they can only be placed in dorms “based on their biological sex.”
“For decades, the College has prohibited male students from living in female dormitories, and vice versa, regardless of whether those students identify with their biological sex. The College likewise separates intimate spaces such as showers and bathrooms in its dormitories,” college officials said.
“The College regularly makes statements communicating these same policies, including this month as it arranges student housing for the fall. But Defendants failed to take into consideration the College or other entities with similar student housing policies in promulgating the Directive.”
U.S. District Judge Roseann A. Ketchmark, appointed to the bench by former President Barack Obama, dismissed the case in June, arguing that College of the Ozarks failed to show an actual or imminent harm that would give it standing to sue. “Plaintiff has not shown in its verified complaint that it ‘has sustained, or is in immediate danger of sustaining, a concrete and particularized harm that is actual or imminent, not conjectural or hypothetical,’” Ketchmark wrote.
“Plaintiff has not alleged it is being investigated, charged, or otherwise subjected to any enforcement action pursuant to the Memorandum; any application or enforcement of the FHA, HUD regulations, or the Memorandum to discrimination because of sexual orientation or gender identity; or the FHA, and HUD’s implementing regulations. Plaintiff has not plausibly alleged any indication that such potential situation is imminent,” she added.
The Religious Accountability Project, an activist organization that “empowers queer, trans and nonbinary students at more than 200 taxpayer-funded religious colleges and universities that actively discriminate on the basis of sexual orientation and gender identity/expression,” has filed a separate lawsuit against the Department of Education challenging the Title IX exemption for religious colleges.
While Title IX prohibits discrimination on the basis of sex in education, the Biden administration has interpreted the statute to include discrimination based on sexual orientation and gender identity as a form of sex discrimination. According to Inside Higher Ed, one of the plaintiffs in that lawsuit is a former student at College of the Ozarks.
The student filed a Title IX complaint with the Department of Education alleging that the college’s policies and practices, including its housing policies, discriminated against LGBT students. Paul Southwick, a lawyer with the Religious Accountability Project, is calling for his case to be adjudicated.
“We know there are transgender students right now who need the housing protection that the government has promised to provide through the Fair Housing Act,” Southwick said. “So it is ripe, and it is timely.”