LGBTQ students say hopes dashed after feds drop BYU investigation

The Department of Education was looking into whether the private religious school was exempt from Title IX.

(Isaac Hale | Special to The Tribune) A Brigham Young University student chats with a friend as she wears rainbow-colored items in support of Rainbow Day on campus in Provo in 2021. The U.S. Department of Education has now dismissed a complaint filed against BYU over how the school disciplines its LGBTQ students.

It’s not the result that LGBTQ students had hoped for.

After months of investigation, the U.S. Department of Education has dismissed a complaint filed against Brigham Young University over how the private religious school treats its queer students.

In a letter this week, investigators said the school is rightfully exempt from federal laws prohibiting gender-based discrimination. The university will be allowed to continue disciplining those who violate its rules banning same-sex relationships.

“I wanted to believe something would come out of this,” said Madi Hawes, a BYU sophomore who is bisexual. “I had hope, but that’s all it was, hope.”

The disappointment spread over the community of LGBTQ students on Thursday. Many saw the decision as the latest in a string of recent events they have viewed as targeting those who are queer at the school, operated by The Church of Jesus Christ of Latter-day Saints. Some said on Twitter that they didn’t know how to move forward now. A few said the decision made them cry.

Hawes added: “We’ve known the church, and thus our school, was OK discriminating against us. But now the government has OK’d it. We are not OK.”

BYU released a statement Thursday, though, heralding the decision to drop the investigation. It said it had anticipated that it would be absolved. And some joined in on patting the school on the back for what they saw as a win. That includes U.S. Sen. Mike Lee, R-Utah, who championed the decision on Twitter as a triumph for “religious freedom and higher education.”

The school said the dismissal affirms “the freedom to operate a religious university without sacrificing distinctive religious beliefs.”

Federal investigators had first been alerted to a possible issue at the school 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, some 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, with some saying they felt tricked into coming out.

The investigation, headed by the Office for Civil Rights within the Department of Education, was meant to determine 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.

The department’s letter said that because BYU has 15 approved exemptions to Title IX, the federal law that protects against discrimination on the basis of sex in schools, it was acting within its rights. Investigators also noted that, as such, they lack the jurisdiction to investigate further.

They ended the letter by noting that BYU cannot “harass, coerce, intimidate, discriminate or otherwise retaliate against an individual” who filed the complaint. They also said the school could still face a federal lawsuit, regardless of a violation not being found.

Reaction from LGBTQ students

For many, the decision feels like the end of the road.

“I’m not sure how long we will allow ‘religious liberty’ to supersede the rights of queer people,” said Zachary Ibarra, a gay Latter-day Saint who graduated from BYU in 2018. “I should not be surprised, but it is still deeply disappointing. When will the rights of queer students be upheld to the law without exception?”

Some had seen the federal investigation as a chance for things to change and for queer students to be accepted at the school.

This type of federal scrutiny is rare, typically happening only in places where there are believed to be potential systemic or serious issues. Students say they believed that was occurring at BYU and anticipated the government stepping in to stop discrimination.

Now, they say, they are disappointed but not surprised.

“The Department of Education’s decision is nearly as heartbreaking as BYU’s coordinated campaign against its queer students is,” said Cal Burke, a recent BYU student who is gay.

Last year, a professor had 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. He feels BYU picks and chooses what it wants to enforce, creating an environment that is particularly difficult for LGBTQ students who don’t know if they will be turned in for something minor.

But Burke said Thursday that he is not planning to end the fight.

“We queer students will never give up because we are right and God is on our side,” he said. “We will not give up until all queer Latter-day Saints are free, and safe, and loved.”

(Isaac Hale | Special to The Tribune) People join part of Utah Pride Week on Sunday, June 6, 2021.

The investigation into BYU, which was officially opened in October of last year, came 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 back.

Last year, several students signed onto a lawsuit, alleging discrimination there because of their identifies. 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.

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. Leader Jeffrey Holland 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.”

It has been a back and forth that Burke said won’t stop with this decision from federal investigators.

Hawes added, too: “It’s not an exemption from a privilege like scholarships or internship opportunities, it’s an exemption from the human right to a safe environment.” And she plans to continue raising that concern.

Religious exemptions

The Salt Lake Tribune has submitted a public records request for a copy of the complaint and other materials. That is still pending, but in response to that, a department official had called the investigation into the school “extensive” and “systemic,” saying there were hundreds of pages of collected documents.

It is unclear what has been gathered by investigators and why that much was put into an investigation that was quickly closed. The Department of Education only confirmed Thursday that the case had been dismissed.

While he is glad it was opened, attorney Paul Southwick had guessed it would not amount to any action against BYU.

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 are 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.

He said he has seen other cases at religious schools quickly closed because they have exemptions.

On Thursday, he called the outcome “disappointing and difficult for students who were hoping for some help from their government, but not unexpected in light of the broad religious exemption that is part of Title IX.”

(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 newly announced policy change on LGBTQ students on March 5, 2020, in Provo.

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.

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.

In its statement Thursday, BYU noted: “Title IX also states that it ‘shall not apply’ to a religious institution to the extent that Title IX requirements are not consistent with the religious tenets of the institution’s controlling religious organization. BYU has long recognized that it is subject to Title IX, and over the years, OCR has recognized the university’s religious exemption on certain issues.”

‘Agree to abide’

Current university President Kevin Worthen had written in a letter to the Department of Education last November, shortly after receiving notice of the investigation, that all students are held to the same Honor Code.

“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.’”

Removing the section on “homosexual behavior” in February 2020 doesn’t matter. The rule can still be applied, he said. He was backed on that with the dismissal of the complaint.

The school president also wrote that it cannot be forced to enforce policies “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.”

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.”

(Chris Detrick | The Salt Lake Tribune) BYU President Kevin J. Worthen speaks at the Marriott Center on Thursday, April 21, 2016.