- The Washington Times - Wednesday, May 19, 2021

A federal judge on Wednesday rejected a Christian college’s request to halt the Biden administration’s directive on gender identity in dwellings.

The College of the Ozarks, a Christian college in Missouri, had argued the government order, which claims to fight discrimination against transgender people, impinges on the rights of Christians and violates Biblical beliefs.

The dispute sets up a new legal battle over religious liberty and gender identity.

Judge Roseann Ketchmark, an Obama appointee, heard oral arguments from both sides for more than two hours Wednesday. After the hearing, she announced she would deny the college’s request to issue an injunction against the rule, which requires that segregated facilities such as dorms and restrooms be based on a person’s gender identity.

“After careful consideration of the law … the court denies the plaintiff’s motion for temporary restraining order and injunction,” she said from the bench. “The court does find that the dispute is not justiciable.”

The judge plans to issue a written order as soon as possible, she said. 

Valorie Coleman, a spokesperson from the college, said the school will appeal.

The College of the Ozarks sued the Biden administration last month after the Department of Housing and Urban Development (HUD) issued a directive following President Biden’s executive order banning discrimination based on sexual orientation or gender identity. 

The new directive reasoned that the Fair Housing Act prohibits discrimination on the basis of sex in dwellings, including colleges. 

The College of the Ozarks argued the order will force schools to allow students of a different sex into dorms and intimate areas. 

“For decades, the College has prohibited male students from living in female dormitories, and vice versa, regardless of whether those students identify with their biological sex. The College likewise separates intimate spaces such as showers and bathrooms in its dormitories,” the school’s lawsuit read.

The lawsuit claimed the memorandum issued by HUD says “agencies participating in the Fair Housing Act Assistance Program must either administer a law that explicitly prohibits discrimination because of gender identity and sexual orientation or must apply its fair housing law in a manner consistent with Bostock,” referring to a 2020 Supreme Court decision.

The Biden administration’s discrimination guidance came down after the Supreme Court ruled last year in Bostock v. Clayton County that the Civil Rights Act of 1964 meant an employee could not be terminated on the basis of sexual orientation or gender identity, because that is a form of sex discrimination.

The ruling was 6-3, with Chief Justice John G. Roberts Jr. and Justice Neil M. Gorsuch joining the liberal wing of the court. 

Julie Blake, a lawyer with Alliance Defending Freedom representing the college, said during oral arguments that the high court’s ruling, authored by Justice Gorsuch, noted that the ruling was focused on the employment context and did not apply to gender conflicts over access to dressing rooms.

“When agency officials applied the directive, they did not apply Bostock,” she told the court of Biden officials. “They extended Bostock — it’s a new standard.”

Lawyers for the Justice Department defended the Biden administration’s policy, telling the judge that many of the arguments made by the college were rejected by the Supreme Court in the Bostock case.

James Luh, an attorney with the Justice Department, said the college should have to show there was a greater degree of harm from the anti-discrimination policy, saying the school doesn’t show sufficient injury to get into court. He added the college hasn’t cited a real complaint.

Serena M. Orloff, another Justice Department attorney, said the government’s memorandum simply notes that HUD will investigate all claims of discrimination. She said leaving a hypothetical student who may face discrimination in the housing context due to sexual orientation or gender identity out of this dispute is unfair.

“This is a purely one-sided dispute. There is another perspective that is not represented here,” Ms. Orloff said.

The crux of the school’s argument was that the Biden administration’s policy was issued without a period for notice and comment, which is required under the Administrative Procedure Act. The college also claimed the Biden directive violates its constitutional rights. 

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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