The Supreme Court on Tuesday declined to hear an appeal from a Missouri Christian university that filed a lawsuit against the Biden administration over its transgender housing policy.
The justices issued a brief, unsigned order declining to take up a case filed by the College of the Ozarks, which appealed a lower court’s decision that found the university had no standing to challenge the policy. That court, as well as the U.S. Court of Appeals for the 8th Circuit, ruled that the school lacks standing because the federal government never tried to enforce the mandate against the school.
On the day President Joe Biden took office in early 2021, he signed an executive order that told federal agencies to interpret sex-discrimination provisions in federal laws. Weeks later, the Department of Housing and Urban Development (HUD) issued a memo (pdf) that updated the 1968 Fair Housing Act (FHA), claiming anti-discrimination laws can protect transgender individuals throughout the federal government.
In its challenge, College of the Ozarks said that the federal government’s rulemaking clashed with the school’s ability to house people based on their biological sex.
“Because the college’s faith teaches that sex is based on male-female biology, not gender identity, the college assigns its dorms, roommates, and intimate spaces by sex and communicates that policy to students,” College of the Ozarks told the Supreme Court.
Lawyers added that the result of the policy “has mammoth implications,” according to court filings. “If HUD gets away with rewriting the FHA via the Directive, it has no incentive to ever go through the rule-making process. That eliminates judicial review until after an enforcement proceeding is complete and the regulated entity has already been harmed,” it said.
The Justice Department (DOJ) previously argued that College of the Ozarks also has a religious exemption to such policies. It said that because of the exemption, the DOJ likely won’t enforce the FHA rule.
“Petitioner has not alleged any past, current, or threatened enforcement of the Memorandum or the FHA against it or any similarly situated college … indeed, as the court of appeals emphasized, HUD has never filed a charge of sex discrimination based on a housing policy against an educational institution where, as here, the Department of Education has recognized that institution’s entitlement to a religious exemption under Title IX,” the Justice Department said in court papers.
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