The following was first published by the Sutherland Institute.

new lawsuit aims at ending a nearly 50-year-old accommodation for religious colleges and universities, including BYU, but it appears to be more about making a statement than stating a valid legal claim.

Congress enacted Title IX, the landmark legislation prohibiting sex discrimination in education, in 1972. In doing so, it wisely wanted to avoid creating conflicts between the new law and the religious teachings of universities affiliated with religious organizations. So Congress included a specific accommodation to allow religious schools to continue to operate consistent with their teachings.

The law provides: “[T]his section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization.” In practice, this means that a university policy motivated by the religious mission of a school, like requiring separate living facilities for men and women, could not be the basis for a finding of sex discrimination.

The case mentioned above – recently filed in a federal court in Oregon – argues that in trying to avoid religious freedom conflicts, Congress actually violated the Constitution. The case has gained some local attention because some of the plaintiffs are former students of Brigham Young University and Brigham Young University-Idaho.

These types of lawsuits are initiated by a complaint which explains in general terms the facts that give rise to the lawsuit and the plaintiffs legal claims.

This suit involves 33 students who attended, or are attending, religious colleges or universities and believe they have been harmed by policies at those universities regarding sexual morality and marriage: specifically, that the schools “do not affirm LGBTQ+ identities.”

For instance, the claims related to the BYU and BYU-Idaho case note policies discouraging sexual conduct outside of marriage between a man and a woman, or university classes that include discussions of the teachings of The Church of Jesus Christ of Latter-day Saints about marriage.

The legal theory behind the lawsuit is that by accommodating the faith practices of religious universities, (1) the law deprives the students of equal treatment and various rights, and (2) the law “results in excessive entanglement with religion” in violation of the Establishment Clause.

The complaint, however, fails to connect some very important legal dots.

First, it assumes that when Title IX prohibits sex discrimination in education, the term “sex” includes sexual orientation and gender identity. Perhaps the lawyers assume that this conclusion follows from the U.S. Supreme Court decision in Bostock v. Clayton County, where the court said the use of the term “sex” in the 1964 Civil Rights Act includes these new categories. The lawyers don’t make that argument, though, and it would need to be accepted by the federal courts before it could form the basis for the result they are seeking.

Second, it does not explain how things like conduct codes, required religion classes, non-acceptance of same-sex marriages, or a non-affirming atmosphere on campus violate Title IX. To this point, Title IX has never been interpreted to prevent honor codes or religion classes or to require LGBT+ affirmation, and any attempt to interpret the law that way would likely run afoul of the First Amendment protections of speech and religious exercise.

Third, many of the rights that the lawsuit argues are being denied have not been established as protected rights. There is nothing in the Constitution or Supreme Court decisions, for instance, that provides a “right to medically necessary gender-affirming medical and psychological care” or a “right to culturally competent sexual and reproductive health services” or a “right to be clothed and groomed consistent with one’s sexual orientation, gender expression and gender identity.”

Fourth, federal courts are unable to make hypothetical rulings. The courts cannot do anything that would resolve the concerns of students, like those who attended BYU, who are no longer at the school.

In fact, the lawsuit would likely create more constitutional problems that it might solve.

The result proposed by this lawsuit would drastically expand the government’s entanglement with religion by subjecting decisions about course content, residential living, honor codes, etc., to government oversight.

The lawsuit makes much of a claim that the schools receive taxpayer funding, but that funding typically goes to students in the form of loans, aid for needy students, or grants for specific research projects conducted by faculty. To require schools to abandon their religious policies in order for their students to receive aid available to all other students would harm the students. The U.S. Supreme Court has recently established that students cannot be denied benefits available to all citizens solely because they choose to attend a religious school.

These are precisely the problems Congress avoided by respecting women’s right to be free from discrimination as they sought an education and the ability of religious schools to act on their beliefs.

The somewhat haphazard claims and legal reasoning suggest that the lawsuit is intended more to draw attention to the organization bringing the lawsuit, the Religious Exemption Accountability Project, and its objection to policies of religious universities. In fact, the lead attorney in the case said he is sending a message to lawmakers that the proposed Equality Act should not be amended to allow religious institutions to operate according to their beliefs if these include beliefs about marriage and sexuality at odds with those of his organization.

The best approach to these kinds of disagreements is the one Congress adopted when it enacted Title IX. It allows students to choose among a variety of schools with different learning and faith environments. It also withholds from government officials the power to choose which religious beliefs and practices they will give official approval. Allowing greater choice and diversity is a better policy to protect students interests’ than mandating a uniformity enforced by the Department of Education.