Congresswoman Katherine Clark introduced a bill on Thursday that would require universities seeking religious exemptions from federal civil rights law to first obtain a waiver from the Department of Education.
The bill is targeted towards LGBTQ students, ensuring that any school requesting an exemption from the non-discrimination requirements of Title IX alert LGBTQ applicants by obtaining and disclosing the waiver on its website.
"This bill will provide students and parents the information they need when selecting a university that aligns with their identity and values," Clark, who is the vice chair of the House Democratic Caucus, said in a press release. "All students deserve equal access to opportunity on campus and without transparency, students are arriving on campus only to learn that their school has policies in place impeding their success and infringing on their civil rights."
A lesser-known provision in current law allows religious universities to exempt themselves from certain anti-discrimination protections if they believe compliance with specific parts of Title IX conflicts with their religious beliefs.
In November, the Department of Education under Secretary Betsy DeVos submitted a proposed rule that would adjust current department regulations around religious exemptions, ensuring that religious schools seeking a clear path to discriminate against LGBTQ students can do so without a waiver, providing for substantially less oversight.
The Department of Education website already claims that proactive waivers are not currently necessary to obtain a religious exemption. The department explains that waivers only serve to provide additional assurances from the department to an exempt school that they are complying with the law and that a school can invoke its religiously exempt status at any time, regardless of waiver. But in the department's own proposed rulemaking, it asserted that a change to the regulations would be necessary because the current system "requires recipients" to obtain a waiver.
Clark's bill, the Exposing Discrimination in Higher Education Act, would preempt the department's proposed rule "by reinstating the additional step of requiring schools to seek a waiver before enabling them to step over civil rights laws," according to the press release.
The bill is co-sponsored by Congresswoman Sharice Davids, the first openly LGBTQ Kansan elected to Congress, and Congressman Chris Pappas, co-chair of the Equality Caucus.
Title IX is the landmark 1972 civil rights law that protects against discrimination "on the basis of sex" at educational institutions receiving federal funds. In two watershed cases, the Supreme Court has previously found that workplace, sex-based anti-discrimination protections under a comparable law applied to situations that would involve LGBTQ employees.
In 1998, the Supreme Court ruled unanimously in Oncale v. Sundowner Offshore Services that a law banning sex-based discrimination in the workplace also applied to same-sex harassment. The following year, the court ruled in Price Waterhouse v. Hopkins that the same workplace sex-based protections necessarily prevented discrimination based on gender presentation.
The Obama administration entered into a settlement with a California public school district in 2013 after a transgender student brought forth claims of discrimination under Title IX to the Department of Education. Before the settlement, no school receiving federal funds had requested an exemption from Title IX to discriminate on the basis of gender identity, according to a 2015 report from The Human Rights Campaign (HRC). After 2013, at least ten schools requesting exemptions for gender identity discrimination cited the settlement as a factor. More than four dozen schools had requested a religious exemption by the time HRC released its report.
While the contours of Title IX don't offer much leeway in protecting LGBTQ students from discrimination by religiously exempt institutions, Clark's office told Newsweek that her bill "is a step in the right direction by giving LGBTQ students info on which schools have discriminatory policies in place when they're considering colleges."
"We must also enact the Equality Act to truly defend the rights of all LGBTQ students," Kathryn Alexander, Clark's communications director, added.
Original story here.