A massive (542 pages) higher education reform bill proposed by House Republicans would write anti-LGBTQ discrimination into the law in the disguise of “religious freedom.” H.R. 4508, authored by Rep. Virginia Foxx (R-NC), contains two provisions clearly designed to enable discrimination on the basis of sexual orientation and gender identity, even if it doesn’t refer to those specific terms.
The bill’s name, “Promoting Real Opportunity, Success, and Prosperity through Education Reform” (the PROSPER Act), suggests it creates opportunities, but a section called “Campus Access for Religious Groups” would add a new provision to the law that would guarantee that student groups can refuse membership or leadership positions on the basis of their identity:
None of the funds made available under this Act may be provided to any public institution of higher education that denies to a religious student organization any right, benefit, or privilege that is generally afforded to other student organizations at the institution (including full access to the facilities of the institution and official recognition of the organization by the institution) because of the religious beliefs, practices, speech, membership standards, or standards of conduct of the religious student organization.
This language refers to various controversies that have arisen when student organizations accept campus funding but then violate the nondiscrimination policies that they are obligated to follow when they accept that funding. The groups refuse to let LGBTQ students either participate or join the leadership of the organization because they claim that those identities violate the religious tenets of the group.
For example, the University of Iowa recently unrecognized a campus group called Business Leaders in Christ because it refused to let a gay student serve as its vice president. The group is now suing, but the university maintains that the discrimination violated both the university’s Human Rights Policy as well as the Iowa Civil Rights Act.
One such case with nearly identical circumstances, Christian Legal Society v. Martinez, actually made it to the Supreme Court, which ruled in 2010 that a student group must abide by its university’s nondiscrimination policy. States like Texas, Missouri, and Virginia have tried to pass bills carving out exceptions like the one found in the PROSPER Act, and some, like Virginia’s, have actually become law.
Another section of the PROSPER Act has language that would protect universities that implement discriminatory processes. It mirrors other proposed bills like the First Amendment Defense Act, which is designed to protect businesses and organizations wishing to refuse service to LGBTQ people.
Notwithstanding any other provision of law, no government entity shall take any adverse action against an institution of higher education that receives funding under title IV, if such adverse action… has the effect of prohibiting or penalizing the institution for acts or omissions by the institution that are in furtherance of its religious mission or are related to the religious affiliation of the institution.
The bill goes on to define an adverse action as:
- the denial or threat of denial of funding, including grants, scholarships, or loans;
- the denial or threat of denial of access to facilities or programs;
- the withholding or threat of withholding of any licenses, permits, certifications, accreditations, contracts, cooperative agreements, grants, guarantees, tax-exempt status, or exemptions;
- any other penalty or denial, or threat of such other penalty or denial, of an otherwise available benefit.
Combined, these provisions would create a sweeping anti-LGBTQ license to discriminate in higher education. Universities would not be allowed to punish student groups that discriminate, and states would not be allowed to punish universities that discriminate.
This is no surprise coming from Foxx, who has a long history of making offensive anti-LGBTQ remarks. For example, during a 2009 debate over LGBTQ-inclusive hate crimes legislation, Foxx insisted that the murder of Matthew Shepard was a “hoax,” that he was killed in a “robbery” and that his death “wasn’t because he was gay.” She subsequently non-apologized to Shepard’s mother “if I said anything that offended her.” When the Supreme Court ruled in favor of marriage equality in 2015, she responded that she was “extremely concerned about the threat this ruling poses to the conscience rights of people and organizations who believe that marriage is the union of one man and one woman.” She promised, “I will do everything in my power to defend these rights and protect the sacred institution of marriage.”
As the Human Rights Campaign notes, the PROSPER Act is rife with other troubling aspects that should be concerning to both LGBTQ students and all other students. In particular, it would continue to dismantle protections for victims of campus sexual assault, a process already started by the Department of Education under Secretary Betsy DeVos.