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BYU is under federal investigation for how it disciplines LGBTQ students

The private religious school says it’s exempt from Title IX requirements. But students say it’s time for a change.

(George Frey | Special to The Tribune) Students and others gather in front of the Ernest L. Wilkinson Student Center on the campus of Brigham Young University to protest BYU's rollback of a policy change on LGBTQ students on March 5, 2020, in Provo. Now in January 2022, BYU is facing a federal investigation, stemming from that decision.

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The U.S. Department of Education has launched an investigation into Brigham Young University and how it disciplines its LGBTQ students to determine whether the private religious school is violating their civil rights.

This type of federal scrutiny is surprising and rare, especially with church-owned schools like BYU — it typically happens only in places where there are believed to be potential systemic or serious issues.

“It’s really significant that investigators are stepping in now,” said Michael Austin, a BYU alumnus and vice president at the University of Evansville, a private Methodist school in Indiana. “It means there’s some reason to think the university has gone beyond the religious exemptions it has and is discriminating even beyond those.”

The investigation of BYU officially started late last year and it concerns Title IX, the federal law that protects against discrimination on the basis of sex in schools.

Federal investigators were first alerted to a possible issue at BYU, which is operated by The Church of Jesus Christ of Latter-day Saints, after a complaint was filed in response to changes made to the school’s strict Honor Code in spring 2020.

At the time, the university had removed a controversial section from the rules that banned “homosexual behavior.” Some students celebrated, openly coming out as queer after, they said, school officials told them it was OK. But a few weeks later, the school clarified that same-sex partnerships would still be prohibited, even if the ban was no longer expressly written.

Those who act against that instruction by holding hands or kissing, according to administrators, could continue to face discipline. LGBTQ students protested, saying they felt gaslit and tricked into coming out.

The investigation, headed by the Office of Civil Rights within the Department of Education, will examine whether such actions by BYU are allowable because it is a private school or if they violate LGBTQ students’ rights, by disciplining them more harshly than heterosexual peers who don’t face the same consequences for similar romantic behaviors.

A spokesperson for the Department of Education did not return a request for comment on the investigation. The Salt Lake Tribune has submitted a public records request for a copy of the original complaint.

University spokesperson Carri Jenkins said in a statement that she believes the federal office will find BYU is properly exempt and within its rights to enforce the church’s policies against same-sex relationships.

“BYU is exempt from application of Title IX rules that conflict with the religious tenets of The Church of Jesus Christ of Latter-day Saints,” Jenkins said. “BYU does not anticipate any further action by OCR on this complaint.”

But the investigation comes after the school has repeatedly been in the national spotlight in the past two years for how it treats LGBTQ students and as many have been pushing for change.

(Isaac Hale | Special to The Tribune) The "Y" on Y Mountain east of Provo is lit in rainbow-flag colors to show support for the LGBTQ community on Thursday, March 4, 2021.

Last year, several students signed onto a lawsuit, alleging discrimination there because of their identifies. One is a recent graduate who is lesbian and said she lost her job at the school because she didn’t look “feminine enough” to her boss. And a group of students spoke out against the school’s policies by lighting the iconic “Y” on the mountain above BYU in rainbow colors.

In response, the university has now banned protests on that property. It also refused take any public action after a professor called a gay student a term associated with an anti-Christ.

And, last fall, a top-ranking apostle of the LDS Church came to campus and criticized faculty members and students who challenge the faith’s teachings on same-sex marriage. He said they should instead take up their intellectual “muskets” to defend “the doctrine of the family and ... marriage as the union of a man and a woman” — even if that costs the school some “professional associations and certifications.” The school’s accreditation has an upcoming review in April.

Some hope the federal investigation might finally end the crossfire.

Religious exemptions

BYU began receiving religious exemptions from Title IX in 1976, becoming the first school to ever do so and leading the charge for private universities across the country to follow.

In a strongly worded letter to the Department of Education at the time, then-BYU President Dallin Oaks bristled at the federal government having any power to control or limit BYU, according to an article about Title IX in higher education from the Kansas Law Review.

The president maintained that as a private religious school, BYU had the right to ask employees and prospective students about their marital status, if they had children out of wedlock (with the faith standing strongly against premarital sex) or if they had previously had an abortion, “because [BYU] condemns promiscuity,” according to Oak’s letter. It also stated it could enforce a dress code, with different requirements for men and women.

Oaks wasn’t asking for permission, but rather notifying the department, which acknowledged the letter by giving out formal exemptions.

Those exemptions continue to apply to BYU today, among 15 total exemptions that the school now has related to sexuality and gender expression.

Its protected actions include the ability to enforce its own preferences while recruiting and admitting students and giving out financial aid. For instance, if a student is openly gay, BYU is permitted under the law to deny him a scholarship. The school can also limit the use of bathrooms based on sex assigned at birth.

“Technically, BYU is allowed to discriminate in those areas,” Austin said.

What’s at question with the new investigation, Austin believes, is whether those exemptions allow BYU to discipline LGBTQ students beyond that, based on the faith’s teachings.

For example, he asks: Can the school punish a gay student for holding hands, when that’s not directly related to education? Is it OK for the university to expel a transgender student for doing something that would not get a heterosexual student into trouble?

Students must agree to uphold the Honor Code when they come into BYU, Austin notes, signing a document vowing to do so. But if the ban on “homosexual behavior” isn’t written in that any more, can students still be held to that?

Current university President Kevin Worthen wrote a letter to the Department of Education last November, shortly after receiving notice of the investigation, saying it still applies.

(Francisco Kjolseth | The Salt Lake Tribune) Brigham Young University President Kevin Worthen, left, waves in this photo from Friday, Sept. 10, 2021.

“All BYU students, faculty, administrators, and staff,” he wrote, “agree to the Church Educational System Honor Code and thereby ‘voluntarily commit to conduct their lives in accordance with the principles of the gospel of Jesus Christ.’”

But Austin wonders if removing that section in February 2020 changed the way the Department of Education views the school’s rules.

How students feel

Carolyn Gasset is the president of the unofficial club of LGBTQ students at BYU known as USGA (Understanding Sexuality, Gender and Allyship).

Currently, its members are not allowed to meet on campus. That is allowed under the exemptions BYU has to Title IX because the school has express permission to ban associations from its private property.

But Gassert believes the school disciplining students differently based on who they are attracted to does not similarly qualify. That is especially the case, she says, now that it’s not in the Honor Code.

“If you gave someone a contract and then introduce a clause and then didn’t have them re-sign it, that would be illegal,” she said.

Madi Hawes, a BYU sophomore who is bisexual and uses she/they pronouns, said the investigation reminds her of when the LDS Church was being criticized for not allowing Black men to hold the priesthood. That was changed with a revelation by leaders of the faith in 1978 after immense public pressure.

As a student of color, Hawes hopes the new investigation could lead to change at BYU for the LGBTQ community, another marginalized group.

Hawes also questions BYU’s strict policy against LGBTQ students expressing any romantic feelings physically, when the church’s manual on same-sex attraction doesn’t seem to require the same.

Instead, the faith’s instructions focus on “sexual purity” for everyone, those who are heterosexual or LGBTQ. Its guidance says: “Sexual relations between a man and woman who are not married, or between people of the same sex, violate one of our Father in Heaven’s most important laws and get in the way of our eternal progress.”

That accords with the law of chastity of the faith, which Hawes believes is reasonable to ask students at BYU to follow. But the guidelines don’t mention anything about LGBTQ people not kissing or holding hands. She believes the school, in disciplining LGBTQ students for those actions, is not acting in accordance with the faith and the faith’s religious exemptions for education shouldn’t then apply.

Cal Burke, a recent BYU student who is gay, added that he’s disappointed the school is framing its stance as one of religious freedom. He sees it as clear discrimination.

(Isaac Hale | Special to The Tribune) Cal Burke, left, joins part of Utah Pride Week on Sunday, June 6, 2021.

“Even if queer students believe the gospel and keep the rules, BYU will not protect them,” he said. “I am a believer, and I did everything right, and BYU still abandoned me when push came to shove.”

Last year, a professor publicly called Burke a Book of Mormon term associated with an anti-Christ. The school declined to say whether it would take action against the professor. Burke believes that goes against the school’s own policy, with the Honor Code requiring that faculty and students “respect others, including the avoidance of profane and vulgar language.”

He feels BYU picks and chooses what it wants to enforce, creating an environment that’s particularly difficult for LGBTQ students who don’t know if they’ll be turned in for something minor.

BYU’s argument

In Worthen’s letter to the Department of Education, the school president defends BYU and says it should be exempt from any requirements under Title IX “that contradict doctrine of the Church of Jesus Christ regarding the distinction between men and women, the eternal nature of gender, or God’s laws of chastity and marriage.”

That, he says, is the constitutional guarantee to freedom of religion. He also attached a copy of the LDS Church’s “The Family: A Proclamation to the World” to show the faith’s stance on gender.

Worthen then goes on to make an argument about Title IX law — suggesting it doesn’t apply to how the school treats LGBTQ students anyway.

“BYU maintains that the text, structure, purpose and history of Title IX make clear that the term ‘sex’ is not ambiguous and refers only to biological differences between males and females, and therefore Title IX does not apply to discrimination ‘on the basis of’ sexual orientation or gender identity,” he said.

He says the school will welcome and support all students, including those who are LGBTQ, as long as they “agree to abide by the tenets of the Church of Jesus Christ.”

“At BYU, where our religious mission is inextricably bound up in the doctrine of Jesus Christ,” he writes, “we simultaneously stand firm in our religious beliefs and reiterate our love and respect for each member of our campus community.”

The Office of Civil Rights responded earlier this month to Worthen. It did not make a ruling on the investigation. Instead, it affirmed that BYU does have some religious exemptions to the law.

But, the office added: “In the event that OCR receives a complaint against your institution, we are obligated to determine initially whether the allegations fall within the exemptions here recognized.” The investigation remains open.

What could happen?

While he acknowledges the investigation is significant and is glad it was opened, attorney Paul Southwick isn’t hopeful about the outcome.

Southwick is the director of the Religious Exemption Accountability Project, which is leading the lawsuit against BYU and other religious schools over Title IX. They’re pushing for private schools not to be allowed exemptions to the law as long as they accept federal funding, which BYU does with grants and student loans.

But with investigations, he worries that the Office of Civil Rights will simply grant Brigham Young University another exemption and close the case. He’s seen that happen at other schools.

“On one hand, it’s good OCR is opening investigations into valid Title IX complaints,” Southwick said. “But I worry it sets up students to have their hopes dashed for reasons having nothing to do with the validity of the facts of their case.”

Austin, though, believes it’s possible, depending on the findings, that BYU gets a warning letter — which would be a strong message telling the school to change its practices. And, if BYU doesn’t change then, it could lose that federal funding that Southwick has focused on — hundreds of millions of dollars, Austin estimates.

Austin doesn’t think the federal investigation will affect BYU’s pending accreditation this spring by the Northwest Commission on Colleges and Universities. The regional accreditation of the whole university comes every seven years, and BYU will most likely get the green light as long as “they do what they say they’re doing,” Austin said.

Jenkins, the BYU spokesperson, said: “BYU does not believe that this notice of complaint that BYU received from OCR will be an issue for the accreditors,” she said.

But Austin thinks the investigation could impact individual programs in the future. Accreditors for subjects such as social work could take issue with BYU’s entanglement and decline to approve those degrees, Austin said. And, he added, “that pushback would be huge.”

The school could also lose students. Taran Trinnaman, who uses he/they pronouns, already left the university over its policies against LGBTQ students like him. He transferred to Utah Valley University after the Honor Code reversal, saying, “I literally couldn’t stay another semester at BYU.”

“Because of who we are, we could lose everything,” he said. “Our education could be jeopardized for just dating or being caught holding somebody’s hand.”

He appreciates much of the faith, he said, but he wants to be treated with dignity and fairness — not discipline.

(Leah Hogsten | The Salt Lake Tribune)In this June 28, 2018, photo, LGBTQ students and allies at Brigham Young University meet at the Provo City Library as part of USGA. They are not allowed to meet on campus.

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