So holds today’s Ninth Circuit opinion in Hunter v. U.S. Dep’t of Ed., decided by Judge Milan Smith, joined by Judges Mark Bennett and Anthony Johnstone:
Title IX, a landmark law prohibiting gender discrimination at federally funded educational institutions, carves out an exception for religious institutions whose tenets mandate gender-based discrimination. Plaintiffs are lesbian, gay, bisexual, transgender, and/or nonbinary (LGBTQ+) students who applied to or attended religious institutions and alleged that they experienced discrimination on the basis of their sexuality or gender identity.
They brought suit against the Department of Education (Department), claiming that Title IX’s religious exemption violates the equal protection guarantee of the Fifth Amendment and establishes a religion in violation of the First Amendment. They also challenge the Department’s implementing regulations of Title IX as arbitrary and capricious…
