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Disputing a Directive: C of O suit seeks to keep genders separate in dorms

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Point Lookout-based College of the Ozarks’ dormitories are closed to members of the opposite sex and the private school has filed suit against the federal government to keep it that way.

The lawsuit filed April 15 in federal court alleges violations of religious freedom by an executive order signed by President Joe Biden in January, according to attorneys with faith-based nonprofit Alliance Defending Freedom. The Scottsdale, Arizona-based organization is defending C of O in the case.

The U.S. Department of Housing and Urban Development issued a directive in February based on the executive order, designed to prevent discrimination on the basis of gender identity or sexual orientation. The suit challenges the government order that protects LGBTQ people from discrimination in federally funded housing, such as college campuses, which include dorm rooms and shared shower spaces.

“At the core of this department’s housing mission is an endeavor to ensure that all people peacefully enjoy a place they call home, where they are safe and can thrive, free from discrimination and fear,” the HUD directive reads, in part. “Yet, this ideal remains unrealized for lesbian, gay, bisexual, transgender and queer-identifying persons, who have been denied the constitutional promise of equal protection under the law throughout most of American history.”

The order would protect, for example, the rights of a transgender student to live in a dorm based on their gender identity.

Biden’s executive order covers more than housing, as it also prohibits discrimination based on sexual orientation and gender identity in areas including but not limited to credit, education, employment and health care, according to the White House website.

Under interpretation
C of O challenges the order’s interpretation of the word “sex” in the Fair Housing Act to include sexual orientation and gender identity.

The Fair Housing Act protects people against discrimination based on sex, race, color, national origin, familial status and disability when they seek a mortgage or rental assistance or buy a home, according to HUD’s website. However, it also includes prohibitions on discrimination in housing at colleges and universities.

C of O officials believe biological sex is not changeable, according to a news release, and its policies in dormitories reflect that belief. The lawsuit alleges the directive would force C of O to change its policy on the prohibition of biologically male students from living in female residence halls.

“We brought the lawsuit because the government shouldn’t be able to tell Christian colleges and universities, such as College of the Ozarks, that they have to put men in women’s dorms,” said ADF lead counsel Ryan Bangert.

Total spring enrollment at C of O is 1,476, with roughly 55% female students, according to school officials.

Bangert said the college also has issue with the process in which the executive order and subsequent directive by HUD was reached.

“That’s one of the claims that we brought in the lawsuit that the department did not follow procedures laid out in the Administrative Procedure Act, which is the statute that governs executive agencies engaged in rulemaking,” he said. “There was no notice for comments, which is required by the APA for a legislative rule like this.”

C of O seeks a temporary restraining order and preliminary injunction against the policy under the APA, Bangert said. A May 19 federal court hearing is scheduled in Springfield, he said.

Officials with HUD declined to comment on the lawsuit. School officials said administrators including President Jerry Davis were unavailable for an interview for this story.

Lack of comment
Gregg Groves, an employment attorney with Lowther Johnson Attorneys at Law LLC in Springfield, said while not associated with the case, he’s read up on it, including the directive issued by HUD. He said C of O seems to have a legal leg to stand on.

“Whether intentional or not, this was a pretty hastily issued order. It came in early on in the administration’s tenure,” Groves said. “The problem is it’s just vague. I don’t think they thought things through.”

Groves said the government’s directive includes the definition of sex to refer to not just biological but gender preference. Like Bangert, he said there should have been a public comment period.

“They were so quick to issue it that they didn’t really think about the ramifications,” he said.

Bangert said he wants HUD to consider and appropriately protect religious freedom rights of colleges and universities that maintain gender-segregated dorms, what C of O has done since its 1906 founding. A public comment opportunity might have warded off the lawsuit, he said.

“This is part of the problem when agencies engage in this kind of almost clandestine rulemaking without opening the process up to public comment,” he said. “You end up with these ill-considered rules that sweep in far too much and trample on religious freedom.”

Future impact
Bangert said a temporary restraining order would prohibit the federal government from forcing C of O to comply with the directive and allow the court time to consider the case in full. He said the directive didn’t impose a timeline on when it expects compliance.

“It said the enforcers of the Fair Housing Act, which include the federal government, as well as state agencies, are to begin receiving complaints and processing those from the public based on claims of discrimination because of gender identity or sexual orientation,” he said, noting no claims have yet been made against the college. “Based on the wording of the directive, it’s in effect right now.”

C of O isn’t the only Christian school to speak with ADF on the issue, Bangert said. He declined to say if any other schools have hired the nonprofit.

“I’m not at liberty to disclose the names of anyone we’ve spoken with but suffice it to say this is an issue of great interest and great concern,” he said.

Evangel University spokesperson Erin Hedlun said school officials were unavailable for an interview. However, she released a statement on behalf of the university. It read, in part:

“We are aware of the HUD directive, have been monitoring its development, and remain in close contact with the Council of Christian Colleges and Universities since President Biden’s announcement in January and subsequent directive in February. As a Christian institution, we hold a biblically based view that gender is determined by one’s biological sex. Our sincerely held religious belief is that every man and woman is created in God’s image; therefore, our campus structure and culture reflect this by maintaining gender specific dorms and bathrooms on campus.”

Officials with Southwest Baptist University were unavailable for comment, said spokesperson Charlotte Marsch.

Groves said it’s possible colleges and universities may have to alter on-campus housing and policies based on the directive. However, he’s highly skeptical that the government order will impact Christian schools.

“I will be shocked if this directive actually ends up applying at the end of the day to forcing religious organizations to require members of the opposite sex to share rooms,” he said. “I’d be surprised if C of O isn’t successful in their suit.”


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