Supreme Court Declines Appeal From Christian School in Transgender Housing Case

Justices of the U.S. Supreme Court pose for their official photo at the Supreme Court in Washington on Oct. 7, 2022. (Front L–R) Justices Sonia Sotomayor and Clarence Thomas, Chief Justice John Roberts, Justices Samuel Alito and Justice Elena Kagan. (Back L–R) Justices Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson. Olivier Douliery/AFP via Getty Images

The Supreme Court on Tuesday declined to hear an appeal from a Missouri Christian university that filed a lawsuit against the Biden administration over its transgender housing policy.

The justices issued a brief, unsigned order declining to take up a case filed by the College of the Ozarks, which appealed a lower court’s decision that found the university had no standing to challenge the policy. That court, as well as the U.S. Court of Appeals for the 8th Circuit, ruled that the school lacks standing because the federal government never tried to enforce the mandate against the school.

On the day President Joe Biden took office in early 2021, he signed an executive order that told federal agencies to interpret sex-discrimination provisions in federal laws. Weeks later, the Department of Housing and Urban Development (HUD) issued a memo (pdf) that updated the 1968 Fair Housing Act (FHA), claiming anti-discrimination laws can protect transgender individuals throughout the federal government.

In its challenge, College of the Ozarks said that the federal government’s rulemaking clashed with the school’s ability to house people based on their biological sex.

“Because the college’s faith teaches that sex is based on male-female biology, not gender identity, the college assigns its dorms, roommates, and intimate spaces by sex and communicates that policy to students,” College of the Ozarks told the Supreme Court.

Lawyers added that the result of the policy “has mammoth implications,” according to court filings. “If HUD gets away with rewriting the FHA via the Directive, it has no incentive to ever go through the rule-making process. That eliminates judicial review until after an enforcement proceeding is complete and the regulated entity has already been harmed,” it said.

Williams Memorial Chapel, College of the Ozarks, Point Lookout, Missouri on April 30, 2016. Nan Fry via Wikimedia Commons/CC BY 2.0

The Justice Department (DOJ) previously argued that College of the Ozarks also has a religious exemption to such policies. It said that because of the exemption, the DOJ likely won’t enforce the FHA rule.

“Petitioner has not alleged any past, current, or threatened enforcement of the Memorandum or the FHA against it or any similarly situated college … indeed, as the court of appeals emphasized, HUD has never filed a charge of sex discrimination based on a housing policy against an educational institution where, as here, the Department of Education has recognized that institution’s entitlement to a religious exemption under Title IX,” the Justice Department said in court papers.

The Biden administration has told the Supreme Court, in papers filed last month, that the early 2021 HUD guidance doesn’t itself require the school or another housing provider “to do or refrain from doing anything.” It added that the college, meanwhile, “has not alleged any past, current, or threatened enforcement.”

When the 8th Circuit Appeals Court ruled on the matter in 2022, it wrote that an earlier district court ruling found that “the college lacked standing to establish a case or controversy and dismissed the action for lack of jurisdiction,” saying that it affirms that decision.

Alliance Defending Freedom (ADF), a nonprofit advocacy group, has been representing the college. They argue that the college might be forced to have women share private spaces with biological men who claim to be transgender women, and the group said that HUD may levy a hefty, six-figure fine against the college.

“College of the Ozarks should be free to follow the religious tradition on which it was founded and young women should not be forced to share private spaces with men. The government can’t strip a faith-based institution of its constitutionally protected freedoms because it disagrees with its views about marriage and sexuality,” ADF Senior Counsel and Vice President of Appellate Advocacy John Bursch said in a news release in March.

He added that multiple states, colleges, and other “organizations have rallied in support of College of the Ozarks’ ability to bring a legal challenge to protect its freedom to operate its school according to its religious beliefs.” In one instance, the state of Missouri filed an amicus brief (pdf), which 18 other states joined, arguing that “this case involves an expansion of federal power and the federal government’s outright failure to address, let alone balance, antidiscrimination policy and interests with religious beliefs.”

In response to the court’s decision on Tuesday, ADF senior counsel Marie Blake told the Washington Examiner that the justices “left this issue unresolved” and said it will likely be challenged.

“Though the high court chose not to review this case, we are hopeful it will soon take up related cases—both challenges to the broad overreach of the Biden administration and the government’s repeated attempts to remove from law any real distinctions between males and females,” Blake said.

The Epoch Times has contacted the ADF for additional comment on Tuesday’s Supreme Court decision.