Eleventh Circuit’s Education Decision Raises Hard Questions

Aug 14, 2020 by David Fowler

Eleventh Circuit’s Education Decision Raises Hard Questions
In June, the United States Supreme Court held in Bostock v. Clayton County that transgender ideology, namely, the principle that sex is not biological but a subjective mental state, was infused into the word “sex” found in Title VII of the 1964 civil rights law that applies to organizations with 15 or more employees. This week, the U.S. Court of Appeals for the 11th Circuit took the next step, extending the Supreme Court’s “gender ideology” to countless public and private schools and colleges. Here are the hard questions this new decision raises.
In Adams v. School Board of St. John’s County (FL), the federal Circuit Court said the biological female plaintiff’s “Title IX claim benefits from the Supreme Court’s recent decision in Bostock v. Clayton County, 590 U.S. ___, 140 S. Ct. 1731 (2020). Bostock announced that Title VII’s prohibition on sex discrimination also forbids discrimination based on transgender status.”
Thus, the Court concluded that the school’s policy was unconstitutional, a violation of the Equal Protection Clause, but in case that conclusion is reversed, the Court also held that Title IX now applies to all public and private schools receiving some form of federal funds in the states of Alabama, Florida, and Georgia. 

Here’s at Least One Immediate Consequence for Christian Education

While I am unaware of what federal funds, if any, private secondary schools may receive, private colleges in Tennessee such as Bryan, Freed-Hardeman, Trevecca, and Lipscomb, to name a few, need to pay attention, because they participate in the U.S. Department of Education’s federal work-study programs as a means of assisting students with tuition. 
Staying in the federal program seems to mean that the colleges are okay with a law that contradicts what they claim to believe about humanity having been created in image of God ‑‑ namely, that that image was expressed by constituting humanity in the form of male and female and that their respective bodies are meaningful to that expression. Of course, the colleges may hold that while they disagree with the law, they can work around it. 
On the other hand, dropping out of federal work-study program will pose challenges for many private Christian colleges, as a number of current and potential students would have to look elsewhere for the funds they need for tuition. Without the federal work-study program, students may have to leave those colleges or choose not to attend them. Those colleges will lose the tuition money they would have paid.

What’s Next: A Potential Solution to Two Bad Choices

I suspect what may be next is that some Christian colleges will refuse to comply with the 11th Circuit’s ruling and, if their work-study programs are cut off, sue for an accommodation of their religious beliefs under the federal Religious Freedom Protection Act (RFRA). It would be akin to what Hobby Lobby and Little Sisters of the Poor did relative to the Obamacare abortifacient mandate.
Who knows how those lawsuits will turn out. You may recall that in June, before the U.S. Supreme Court, the Little Sisters of the Poor “won.” But they are still in court. The fight is now over whether President Trump’s accommodation for religious organizations under RFRA was “reasonable.” Of course, what is “reasonable” under RFRA depends entirely on one’s worldview, and the legal worldview right now is diametrically opposed to that of the nuns and to the biblical view of sex and human sexuality in general.

Why ‘Religious Liberty’ is Not a Long-Term Answer

It seems to me that Christians retreating on these issues to the bastion of religious liberty (and a statutory one at that!) are asking for permission from the prevailing orthodoxy of secularism to live in the equivalent of the ghettos set up in Poland for the Jews. But ghettos weren’t enough. If Jews really were what Germany’s leaders thought they were, then should we really be surprised that those leaders eventually concluded that the only logical and right course of action was to eliminate the Jews?
The point is this: Without a culture that believes in God and founds its laws on that premise, then religious liberty is a right firmly planted in mid-air. It is like a pretty, shiny soap bubble that floats along but bursts easily and eventually dissipates under (air) pressure.

What All This Really Means

If the gender ideology that now infuses the law pronounced by our highest court is really true about the nature or essence of what it means to be male and female, then why should the law continue to allow people to poison the ‘believing’ society with what is false? 
If gender ideology is true to the way things really are, then I admit that Christians are discriminating. They are evaluating these issues on the basis of an invalid criteria, and that is exactly what wrongful discrimination is.
Given that’s now how the larger culture and our highest court think, the religious liberty bubble of refuge will soon dissipate under (social) pressure. What will Christians have then? 
Here’s my guess, paraphrasing Patrick Henry: If the Christian liberty to live as Christ in every area of life means death, then the Christian’s choice may have to echo his—Give me this liberty or, if need be, give me death. After all, don’t Christians believe that life in Christ is true liberty and is true life and that its absence is death? (See Romans 8:6, 2 Corinthians 3:17)

What May This Mean for Me?

When I boil it all down, I need to ask myself these two questions and get them firmly resolved: 
Does the value of that liberty stir that kind of resolution in my soul? 
And if it does not, am I trusting in God or in a man-made religious liberty to save me “from this present evil age?” (Galatians 1:4, NKJV)
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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