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Dive Brief:

  • The U.S. Supreme Court on Tuesday refused to consider an appeal from a Christian college in Missouri that sued the Biden administration over a federal directive protecting gay and transgender people from housing discrimination. 
  • In 2021, College of the Ozarks filed its lawsuit, which challenged a legal interpretation from the U.S. Department of Housing and Urban Development. HUD at the time determined that the Fair Housing Act shielded people from discrimination based on their gender identity and sexual orientation. 
  • College of the Ozarks said this did not comport with its religious tenets, as it sought to assign students housing based on their sex at birth, rather than their gender identity. The Supreme Court’s denial to hear the case ends the college’s legal challenge.

Dive Insight:

Right after taking office, President Joe Biden took executive action that directed federal agencies to examine whether laws and policies in their purview protected gay and transgender people from discrimination.

As a result, HUD in 2021 issued a memo on the Fair Housing Act, which drew on a landmark 2020 Supreme Court decision, Bostock v. Clayton County. The high court in that case found that Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination, extended to gender identity and sexuality. 

The Fair Housing Act, or FHA, is written similarly to the workplace protection law and includes an explicit protection based on one’s sex. 

College of the Ozarks took exception to HUD’s interpretation and sued in April 2021. 

But lower courts sided with the federal government, ruling the college did not have standing to sue, partially because the Biden administration never attempted to bring an anti-discrimination complaint against the institution. 

College of the Ozarks then appealed to the Supreme Court last year, alleging the Biden administration had deprived the college of the ability to weigh in on the policy before instituting it, an argument the lower courts previously rejected. 

The lawsuit was brought by Alliance Defending Freedom, a conservative legal group that is also suing the federal government over access to mifepristone, medication that can induce an abortion.

“College of the Ozarks brought this challenge for one reason: The Biden administration was attempting to force them to open their dormitories to members of the opposite sex,” Julie Marie Blake, senior counsel with Alliance Defending Freedom, said in an emailed statement Wednesday. “Though the high court chose not to review this case, we are hopeful it will soon take up related cases.”

The college could sue again should the Biden administration punish it for not complying with federal policy. 

But that’s unlikely. In May court filings, the U.S. Department of Justice noted that HUD has never tried to penalize an educational institution for housing practices that could fall under a Title IX exemption. 

Title IX is the law banning sex-based discrimination in federally funded schools, but religious institutions can claim exemption from it. 

“Petitioner has not alleged any past, current, or threatened enforcement of the Memorandum or the FHA against it or any similarly situated college,” the Justice Department said in the May court records.

The U.S. Department of Education in 2021 had also relied on the Bostock ruling to determine that Title IX applies to gender and sexuality. 

A 2022 federal court ruling blocked that Education Department guidance from applying to 20 states that had sued over it. Texas also recently filed a lawsuit against the Education Department’s directive.