Ninth Circuit Upholds Title IX's Exemption for Religious Institutions Against Establishment Clause, Equal Protection Challenges

The Ninth Circuit ruled that Title IX's exemption for religious organizations from its prohibition on sex discrimination did not violate the Establishment Clause or equal protection. The court also dismissed the plaintiffs' Administrative Procedure Act claim for lack of standing.

The case, Hunter v. U.S. Department of Education, arose when LGBTQ+ students alleged that religious schools discriminated against them on the basis of their gender identity, and that Title IX's exemption for religious institutions allowed that discrimination in violation of the Establishment Clause and equal protection.

The Ninth Circuit disagreed. The court applied the history-and-tradition test for the Establishment Clause from Kennedy v. Bremerton School District and ruled that there's a long history of accommodating religion, even if that history doesn't include accommodations from government benefit programs exactly like Title IX:

[These cases] evidence a continuous, century-long practice of governmental accommodations for religion that the Supreme Court and our court have repeatedly accepted as consistent with the Establishment Clause. The examples provided by the Department demonstrate that religious exemptions have "withstood the critical scrutiny of time and political change." And given that this exact law did not exist at the Founding, that more recent (albeit, still lengthy) tradition is of greater salience.

As to the equal protection claim, the court said that Title IX's exemption meets intermediate scrutiny, and therefore doesn't violate equal protection:

The exemption substantially relates to the achievement of limiting government interference with the free exercise of religion. As the Department states, the "statutory limitations on its application ensure a substantial fit between [ends and] means." It only exempts educational institutions (a) controlled by religious institutions and (b) only to the extent that a particular application of Title IX would not be consistent with a specific tenet of the controlling religious organizations. The exemption does not give a free pass to discriminate on the basis of sex to every institution; it contains limits that ensure that Title IX is not enforced only where it would create a direct conflict with a religious institution's exercise of religion. Thus, the exemption substantially relates to a "fundamentally important" government interest.