The Department recognizes that educational institutions, stakeholders, and the public benefit from greater clarity concerning religious exemptions to Title IX and greater transparency as to what factors the Department considers when evaluating a school’s invocation of a religious exemption. The Final Rule, for the first time, codifies how an educational institution may demonstrate that it is controlled by a religious organization for purposes of Title IX, 20 U.S.C. section 1681(a)(3). Federal law already provides that Title IX “shall not apply” to educational institutions that are “controlled by a religious organization,” to the extent that application of Title IX “would not be consistent with the religious tenets of each organization.” Likewise, federal regulations echo the fact that Title IX does not apply to certain schools “controlled by a religious organization.” Before now, neither Title IX nor its implementing regulations have ever defined what it means to be “controlled by a religious organization.” Now, the Final Rule gives schools and other stakeholder clarity on the meaning of this phrase.
The Final Rule gives fair notice to stakeholders and the public of when the religious exemption under Title IX applies, and balances the Department’s interest in securing religious freedom for educational institutions with its interest in ensuring vigorous enforcement of Title IX’s prohibition of discrimination on the basis of sex. The Final Rule provides a non-exhaustive list of criteria that an educational institution may use to satisfy the definition of “controlled by a religious organization.”