From today's decision by Judge Ann Aiken (D. Ore.) in Hunter v. U.S. Dep't of Ed.; I think this is quite right, because the government has no constitutional obligation to prohibit sex discrimination (or race discrimination, religious discrimination political discrimination, or what have you) by private institutions, even ones that get government funds:
Plaintiffs challenge Defendants' application of the religious exemption included in Title IX of the Education Amendments of 1972 … to sexual and gender minority students who attend private religious colleges and universities that receive federal funding….
Title IX prohibits educational programs or activities receiving federal funds from excluding, denying benefits to, or subjecting to discrimination any person on the basis of sex…. One narrow exception to Title IX is when an educational institution "is controlled by a religious organization" with "religious tenets" inconsistent with the application of Title IX….
Plaintiffs are forty LGBTQ+ people who applied to, attended, or currently attend religious colleges and universities ("religious schools") that receive federal funding. They allege that their schools have discriminated against them by, among other things, subjecting them to discipline (including expulsion), rejecting their applications for admission, and rescinding their admissions because of their sexual orientation or gender identity. Plaintiffs seek to represent a class of "LGBTQ+ students who attend taxpayer-funded religious colleges and universities that openly discriminate against them in both policy and practice." [Plaintiffs' claims appear to be that sexual orientation and gender identity discrimination are forms of sex discrimination that would be forbidden by Title IX were it not for the religious exemption, just as the Court has concluded that Title VII's ban on sex discrimination in employment generally bans sexual orientation discrimination and gender identity discrimination as well.—ed.]
The court rejected plaintiffs' equal protection claim (under the "equal protection component" of the Fifth Amendment Due Process Clause); a short excerpt:
