College Asks Appeals Court to Void Order Ending Gender-Specific Facilities

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

Attorneys for the College of the Ozarks in Missouri are asking the U.S. Circuit Court of Appeals for the 8th Circuit in Kansas City to void a federal directive forcing the school to end gender-specific living facilities.

The regulation prompting the litigation was issued by the Department of Housing and Urban Development (HUD) following President Joe Biden’s signing of an executive order on his first day in the Oval Office directing all federal agencies to reinterpret Title VII of the 1964 Civil Rights Act in light of the Supreme Court’s 2020 decision in Bostock v. Clayton County.

That court decision held that prohibitions on sex-based discrimination must include an individual’s gender identity and sexual orientation. Based on Biden’s order, HUD officials, led by Secretary Marcia Fudge, a former Democratic congresswoman from Ohio, issued a Feb. 11 directive that bars any recipient of federal funds for any purpose from segregating bathrooms, showers, and other living quarters on the basis of gender.

The directive applies to all colleges and universities that admit students who receive federal education assistance loans. Dozens of faith-based private colleges across the country maintain separate living quarters for male and female students.

“Plaintiff College of the Ozarks needs urgent relief to stop the government from threatening crippling penalties against it and other private religious colleges unless they open girls’ dormitories to males and cease speaking about their housing policies,” the school said in its petition filed on June 11.

“In February, with no public notice or opportunity for comment, the government issued a ‘directive’ redefining the Fair Housing Act (FHA) to prohibit sexual orientation and gender identity discrimination and mandating ‘full enforcement’ nationwide, including for college student housing.

“When the college sought protection from this mandate, the district court denied an injunction and sua sponte dismissed the case as nonjusticiable, declaring that the directive is a non-binding policy statement. That is error.

“The directive is reviewable final agency action that imposes immediate obligations on the college, coupled with threats of crippling fines and even criminal prosecution.”

The appeal was prompted by the June 4 decision of the U.S. District Court for the Western District of Missouri, Southern Division, to deny the school’s motion for a temporary restraining order and to dismiss the suit.

The court cited the importance of judicial restraint to justify its decision to deny the motion and dismiss the case.

“The court recognizes the significance and sensitivity of the underlying societal issues of this case. It is this recognition that warrants the court’s caution in making its ruling here and illustrates the importance of employing judicial restraint,” the district court stated in its decision.

The district court also stated that the school had failed to demonstrate any likely injury that is “fairly traceable” to the government’s housing directive.

College of the Ozarks is represented in the litigation by the Alliance Defending Freedom (ADF), an Arizona-based public interest law firm that specializes in religious liberty and other First Amendment issues.

The firm has won 12 Supreme Court victories since 2001, including the landmark Masterpiece Cakeshop v. Colorado Civil Rights Commission, which affirmed that an individual couldn’t be required to provide a service or message that conflicted with his or her religious views.

“It’s entirely inappropriate—as well as unconstitutional—for the government to force private religious schools to open girls’ dorm rooms to males or vice-versa,” said ADF senior counsel Julie Marie Blake in a June 14 statement.

“President Biden is punishing religious schools, organizations, and churches simply because of their beliefs about marriage and biological sex. Schools like the College of the Ozarks are free to follow the faith tradition they represent. That’s why we are asking the Eighth Circuit to halt enforcement of this unconstitutional directive while our lawsuit proceeds,” Blake said.

Congressional correspondent Mark Tapscott may be contacted at [email protected].