So holds today's Ninth Circuit opinion in Hunter v. U.S. Dep't of Ed., decided by Judge Milan Smith, joined by Judges Mark Bennett and Anthony Johnstone:
Title IX, a landmark law prohibiting gender discrimination at federally funded educational institutions, carves out an exception for religious institutions whose tenets mandate gender-based discrimination. Plaintiffs are lesbian, gay, bisexual, transgender, and/or nonbinary (LGBTQ+) students who applied to or attended religious institutions and alleged that they experienced discrimination on the basis of their sexuality or gender identity.
They brought suit against the Department of Education (Department), claiming that Title IX's religious exemption violates the equal protection guarantee of the Fifth Amendment and establishes a religion in violation of the First Amendment. They also challenge the Department's implementing regulations of Title IX as arbitrary and capricious under the Administrative Procedure Act (APA)….
This case addresses, among other issues, the question of whether Congress's attempt to balance the important interests of religious freedom and gender-based equality violated the Constitution. Because we hold that Congress did not exceed its constitutional boundaries, we affirm….
Title IX prohibits certain educational institutions from receiving federal funding if they exclude, deny benefits to, or subject to discrimination any person "on the basis of sex." We have recently interpreted this provision to prevent federally funded educational institutions from discriminating against gay or transgender students. See also Bostock v. Clayton County (2020) ("[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex" in the context of Title VII.). Title IX does not prohibit discrimination, however, when an educational institution "is controlled by a religious organization if the application of [Title IX] would not be consistent with the religious tenets of such organization." …
The court held that the exemption doesn't violate the Establishment Clause:
