It is well known that Title IX prohibits discrimination on the basis of sex in education programs and activities. Compliance with Title IX can, however, conflict with the religious tenets of faith-based institutions. Congress contemplated this tension and created a statutory avenue that allows an institution to seek an exemption from Title IX where compliance conflicts with a religious tenet of the institution.
What institutions are eligible for the religious exemption?
Under Title IX, an institution that is controlled by a religious organization may apply for an exemption from those sections of Title IX that are inconsistent with the religious tenets of the organization. OCR’s website states that an institution will normally be considered controlled by a religious organization if one or more of the following conditions are true:
- It is a school or department of divinity; or
- It requires its faculty, students or employees to be members of, or otherwise espouse a personal belief in, the religion of the organization by which it claims to be controlled; or
- Its charter and catalog, or other official publication, contains explicit statement that it is controlled by a religious organization or an organ thereof or is committed to the doctrines of a particular religion, and the members of its governing body are appointed by the controlling religious organization or an organ thereof, and it receives a significant amount of financial support from the controlling religious organization or an organ thereof.
Most intuitions that apply for an exemption do so under the third bullet point.
How can an institution apply for a religious exemption?
An institution that meets the definition above is eligible to apply for an exemption. 34 C.F.R. § 106.12(b) outlines the application process.
It is straightforward:
An eligible institution must submit a written request to OCR signed by the highest ranking official of the institution. The writing must identify:
- The religious organization that “controls” the institution;
- The specific provisions of the Title IX regulations that conflict with its religious tenets; and
- The religious tenets at issue.
OCR does not appear to exercise discretion on whether to grant the exemption if all the requirements are satisfied.
Are applications and approvals available to the public?
Although OCR has previously released a list of the institutions that have applied for or received a religious exemption, it is important to note that OCR announced by letter dated Jan. 20, 2016, that
“OCR is in the process of preparing . . . requests and responses [for religious exemptions] for posting on our website with a basic search tool so that applicants, students, parents, and others can be better informed about which educational institutions have sought and/or received a religious exemption.”
Applications for religious exemptions and OCR’s responses will therefore be available on OCR’s website soon.
What this means for you?
The religious exemption gives faith-based institutions the ability to seek approval from OCR for noncompliance with specific Title IX regulations where the institution’s religious tenets conflict with the regulation.
OCR has historically granted exemptions in several areas—primarily pregnancy and equality in sports. Recently, OCR has granted several exemptions from Title IX as it applies to transgender students.
If compliance with a specific area of Title IX conflicts with a religious tenet of your institution, the religious exemption provides an avenue to seek approval for noncompliance.