‘Women shouldn’t be forced to share private spaces—including showers and dorm rooms—with males’
College of the Ozarks, a private Christian college, is taking the Biden administration to court over a HUD directive it claims forces the school—and others like it—to violate their religious beliefs and house biological males with female roommates in female dormitories.
On February 11, the U.S. Department of Housing and Urban Development issued a directive prohibiting discrimination on the basis of sexual orientation and gender identity in housing. It did so in order to carry out and comply with a sweeping executive order President Joe Biden issued on his first day in office.
Alliance Defending Freedom has filed a federal lawsuit on behalf of College of the Ozarks challenging the directive.
President Biden, in his January Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, had directed all federal agencies to reinterpret existing laws and policies on sex discrimination to include sexual orientation and gender identity.
“The government cannot and should not force schools to open girls’ dorms to males based on its politically motivated and inappropriate redefinition of ‘sex,’” said ADF Senior Counsel Julie Marie Blake in a news release.
“Women shouldn’t be forced to share private spaces—including showers and dorm rooms—with males, and religious schools shouldn’t be punished simply because of their beliefs about marriage and biological sex. Government overreach by the Biden administration continues to victimize women, girls, and people of faith by gutting their legal protections, and it must be stopped.”
The lawsuit names Biden along with the U.S. Department of Housing and Urban Development, HUD Secretary Marcia Fudge, and Acting Assistant Secretary for Fair Housing & Equal Opportunity of HUD Jeanine Worden as defendants.
Although College of the Ozarks is a small, private liberal arts college located in Missouri, ADF attorney Ryan Bangert told The College Fix in a phone interview that its dormitories are covered by the Fair Housing Act and thus subject to the directive.
“They are impacted because the directive would force them ultimately to house males in female dorms,” he said. “The reason for that is the directive interprets, or purports to interpret, a federal statute called the Fair Housing Act… and the word that’s used in the Fair Housing Act is the word ‘dwellings’… [which] applies to college dormitories. So, if you talk about College of the Ozarks and similar institutions, that would really include any college or university that separates housing based on sex.”
Bangert is senior counsel and vice president for legal strategy at Alliance Defending Freedom.
The lawsuit, which raises several challenges against the directive, argues it “contradicts the text, structure, legislative history, and historical judicial interpretation of the Fair Housing Act and its implementing regulations, all of which confirm that ‘sex’ means biological sex.”
Because the directive appears to apply to housing providers regardless of whether they receive federal funds, the complaint contends that the college has “no option to avoid being subject to the Directive, other than to cease providing student housing.”
However, the complaint also notes the college provides on-campus housing to approximately 86 percent of its students.
“Young women should not be forced to share private spaces, including showers and dorm rooms, with men,” College of the Ozarks President Jerry Davis informed students and faculty in a press conference announcing the suit. “A religious institution should not be forced to betray its religious beliefs. The government’s threats include harmful fines that could easily be in the six-figure range, in addition to damages and unlimited attorney’s fees, if we don’t change our policies.”
According to the lawsuit, the college holds to the biblical view that marriage is between one man and one woman and that biological sex is inherent and unchanging. Its dormitory policies reflect this in separating, and informing students and prospective students, that its residence halls are separated by biological sex.
Yet Bangert noted that the directive not only requires religious colleges like College of the Ozarks to open female dormitories to biological males, and vice versa, but bars them from telling students “We’re not going to house transgender males in female dorms.”
It also requires the college and its employees to “treat occupants of College housing according to a person’s stated gender identity, including use of the person’s preferred pronouns, rather than according to the person’s biological sex,” the complaint states.
As a result, the lawsuit argues the directive violates the college’s First Amendment rights to religious exercise and free speech as well as the Religious Restoration Act.
“The College’s sincerely-held religious beliefs cause it to prohibit male students from living in—or even visiting—female residence halls, and vice versa, regardless of whether those students identify their gender with the opposite sex,” the complaint states. “[L]ikewise [it] separates intimate spaces such as showers and bathrooms in its residence halls based on its sincerely-held religious beliefs. The College’s compliance with these beliefs… [and its] speech about its residence hall policies is a religious exercise. If the College continues to provide student housing, it will be required to violate either the Directive or its sincere religious beliefs.”
The lawsuit also contends that HUD overstepped its constitutional authority and violated the Administrative Procedure Act when it issued the directive without providing the public “notice” nor “opportunity to comment” on “the proposed rule.”
The result, Bangert told The Fix, has been a “one-size-fits-all rule that provides no recourse or no relief for religious institutions.”
“If HUD had actually taken the time to walk through the administrative process properly, it’s entirely possible that the rule applied would include exceptions, exemptions, and carve-outs for religious institutions much like what you see in the Title IX space,” Bangert said.
“And that is one possibility that HUD could do it that way, but we never even had the opportunity to have that conversation because HUD simply imposed this rule without any notice or comment to the public.”
The U.S. Department of Housing and Urban Development, when asked by The College Fix for a comment on the case, simply replied with “no comment.”
In addition to asking the court to “vacate and set aside” the directive, the complaint also requests that the district court issue a temporary restraining order and preliminary injunction as the college is “engaged in time-sensitive statements and planning right now—with current and incoming students—describing its housing policies for the fall semester” and the directive “threatens massive penalties on the College for maintaining its policies and making statements about them.”
Bangert said a hearing had been set for May 19.
“It’s possible that the court would take action at that time,” he said.
As long as the directive remains intact, Bangert said, its “effect will fall heaviest on religious institutions—not least because the separation of the sexes in the dormitories is not just a practical thing, although it very much is, but [because] it’s also part of the way that the school carries out its religious belief.”
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