Has Baylor University turned its back on LGBTQIA+ students?

Baylor University’s exemption from the anti-sexual harassment provisions of a United States federal education law has left members of the LGBTQIA+ community feeling as if the university has turned its back on them.

The university, which bills itself as a “nationally ranked Christian university” with 15,000 students on its campus in Waco, Texas, was granted the exemption to Title IX of the Education Act of 1965 by the Department of Education Office for Civil Rights (DOE-CR).

The exemption request followed a human rights complaint filed by then sophomore Veronica Bonifacio Penales in 2021 with the help of the Portland, Oregon-based Religious Exemption Accountability Project (REAP).

The complaint alleged that she had been harassed, including by having sticky notes saying “f-a-g” pasted to her dorm room door, because she is a member of the university’s LGBTQIA+ community.

Penales, who graduated in June, was open about her sexuality at Baylor even though it is an avowedly Baptist institution; she was active on campus, promoting LGBTQIA+ rights.

On 6 April 2021, Baylor’s student newspaper, the Baylor Lariat reported her saying that after a friend posted on Instagram a picture of her with a temporary rainbow painted on her thigh, she received replies with the hashtags “#NotMyGoodBaptistUniversity” and “#NotMyGoodChristianUniversity”. The worst hashtag, however, she said, removed the “l” from her hashtag “#Flagrunner”. “So it said just the word,” she said.

“I am saddened by Baylor’s lack of integrity and accountability to their students,” Penales said in a media release issued by REAP on 11 August 2023. “I know many will not feel safe returning to campus [this fall], and rightfully so. If Baylor believes it has a religious liberty right to allow us to be harassed there truly is no protection left for us.”

For his part, Paul Carlos Southwick, REAP’s director, said: “This unprecedented move makes Baylor unsafe for LGBTQIA+ students and is truly shocking. For the first time in Title IX’s history, a federally funded university has been given special permission, by the Biden Administration no less, to allow its LGBTQIA+ students to be sexually harassed. Any reasonable person can see that this coddling of the religious extremists has gone too far.”

Pushback

In a statement to the Texas Tribune, Baylor’s assistant vice-president of media and public relations Lori Fogelman pushed back against the charge that the university was turning its back on its LGBTQIA+ students.

Fogelman said that the reports on the exemption wrongly characterised it as a “broad based exemption to sexual harassment”.

In an open letter to the university community Dr Linda A Livingstone, Baylor’s president, tried to assure students, faculty and staff that it was “completely untrue” that “Baylor will now stop or modify how we provide Title IX or other protections to students, including those who identify as LGBTQ.

“There will be NO CHANGES [emphasis in the original] to Baylor’s current practices or policies related to sexual harassment and other forms of sexual and interpersonal contact resulting from the assertion of our existing religious exemptions. Our Office of Equity, Civil Rights, and Title IX will continue to investigate sexual harassment allegations or related complaints and investigate these thoroughly and fairly,” she stated.

“We have taken and will continue to take meaningful steps to ensure that all students – including members of the LGBTQ community – are loved, cared for and protected as a part of the Baylor family.”

A ‘complicated’ legal matter

Livingstone’s letter characterised the request for the exemption “as a narrow, yet complicated legal matter that has implications for all religious-based universities”.

While religious-based colleges and universities have always been able to apply for exemptions from Title IX, Baylor’s request for an exemption was made easier by changes made to Title IX regulations by the Trump Administration in 2020. In its explanation of its proposed Title IX regulations, then Secretary of Education Betsy DeVos proposed to “eliminate the requirement that religious institutions submit a written statement to the assistant secretary for civil rights to qualify for the Title IX religious exemption”.

Shiwali Patel, director of justice for student survivors and senior counsel at the National Women’s Law Center, told Mother Jones magazine (14 August 2020) that the “Trump administration changed Title IX regulations to make it clear that schools did not have to file for exemptions in advance of complaints. Instead, they could file once complaints were raised, which, she argued, gives universities less incentive to be transparent.”

(According to REAP, it is unclear whether, having granted the exemption, the DOE-CR will dismiss the Penales complaint as well as two other Title IX complaints that had been filed before the university asked for the exemptions.)

The “complicated legal matter” Livingstone refers to is Baylor’s assertion, which the DOE-CR accepted, that the provisions of Title IX relating to sexual harassment violate the tenets of the institution that was founded by Baptists in 1849 and to this day is Baptist run.

Title IX, which was added to the Education Act of 1965 in a 1972 amendment, requires that institutions receiving federal funds operate in a non-discriminatory manner free of discrimination based on sex, including sexual orientation and gender identity, and fulfil Title IX obligations concerning sex-based harassment, which encompasses sexual assault and other forms of sexual violence and treatment of LGBTQI+ students.

Baylor is “committed to being ‘a place where the Lordship of Jesus Christ is embraced, studied, and celebrated’. Its employees, for example, are “called to serve as Christ’s witness to the world”, Livingstone told the DOE-CR.

“The University does not discriminate on the basis of sexual orientation or gender identity or expression per se, but it does regulate conduct that is inconsistent with the religious views and beliefs that are integral to its faith and mission.”

Baylor “affirms the biblical understanding of sexuality as a [being] a gift from God” and, further, requires “purity in singleness [chastity] and fidelity in marriage between a man and a woman as the Biblical norm,” Livingstone said.

Religious tenets

“Any asserted Title IX requirement that Baylor must allow sexual behaviour outside of the marital union between a man and a woman, or that contradicts the Baptist doctrine of marriage and the created distinction between men and women, is inconsistent with Baylor’s religious tenets.” This, she asserts, exempts the university from Title IX requirements.

Livingstone’s assertion notwithstanding, the legal question is rather more complicated and turns on the word “tenet”.

According to Risa Lieberwitz, general counsel of the American Association of University Professors (AAUP), which tenet is violated by Title IX’s provisions concerning sexual harassment is not easily determined.

As she wrote in September 2022 in the AAUP’s Comment on the Department of Education Proposed Rule: Non-discrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance:

“[It is] difficult to conceive of a religious tenet that is inconsistent with prohibiting sex discrimination such as sexual assault and other forms of sex-based harassment. At the very least, it is certainly reasonable to require an educational institution to identify how regulatory requirements for adopting and enforcing policies against sex discrimination are in conflict with specific religious tenets”.

In the Baylor case, Lieberwitz highlighted the letter from the DOE-CR, which quoted from Livingstone’s letter, which said that “Baylor’s guiding principles include the ‘dignity and worth of all, regardless of sexual orientation or gender identity’.”

The paragraph continues, quoting Livingstone, by referring to “our commitment to providing a welcoming, supportive educational environment based on civility and respect for all”.

“So, under the description that Baylor itself provides as guiding principles, I really question on what basis does the assistant secretary [Catherine E Lhamon, who heads the DOE-CR] provide this sort of sweeping exemption and zeroing in, here, on sexual harassment,” Lieberwitz told University World News. (The DOE-CR gave Baylor an exemption in 16 areas in addition to harassment, including athletics, counselling, marital and parental status, housing and preference in admission.)

When asked if the exemption could be challenged in court, Lieberwitz said that she had never heard of such an exemption from Title IX being challenged in court. While in theory it could be, she did not think a case would be successful, especially if it were appealed, ultimately, to the Supreme Court of the United States.

“I think the context to think about is what this exemption has to do with broader legal questions about religious intuitions being exempted from anti-discrimination laws. There’s a First Amendment issue with regard to the free exercise of religion [which is guaranteed by the amendment],” she said.

“This had been a very controversial issue in the Supreme Court, generally, [and now] Baylor more recently. The Supreme Court had become very sympathetic and more supportive of exempting religious institutions from regulation under civil rights laws, such as anti-discrimination and employment discrimination,” she said.

One example is the 2014 case of Burwell v Hobby Lobby, in which the Supreme Court ruled that the provision in the Affordable Care Act (aka ObamaCare) that required for-profit companies to have health insurance for their employees’ contraception medications was unconstitutional. Hobby Lobby, which is owned by a devout Catholic family, claimed that paying for health insurance that provided contraception violated their religious beliefs.

A question of scope

Lieberwitz had a further concern when asked what the decision means given that sexual harassment is on a continuum that may begin with unwanted comments and end with, to use the Canadian legal term, sexual assault.

“It’s not clear what scope is here with regard to sexual harassment which … can include not only harassment based on speech, but also harassment based on actual conduct or unwanted touching,” she said.

“Now, it does say in the secretary’s [Lhoman’s] letter that this letter should not be construed to grant exemption from the requirements of Title IX and regulations other than as stated above [that is, the list of 17 exemptions]. And, therefore, you could argue, if we’re talking about some sort of stalking or sexual assault, that may certainly be what the secretary says can be applied because it crosses the line from sexual harassment into some other kind of physical conduct.”

Lieberwitz underscored how the exemption could open the door to an implicitly threatening environment insulated by claims that it conforms to religious tenets, which, she had explained earlier, were at best nebulously articulated.

The exemption “creates an expectation that if you choose to come here, that under these religious tenets, you may be subjected to very negative statements based on sexual orientation. And in the end, students would not be able to claim that that’s unwelcome conduct that creates a hostile environment”.