A federal judge earlier this week denied a preliminary injunction that, unless overturned on appeal, could force the College of the Ozarks to begin allowing men in women’s dorms and showers — or vice versa.
In mid-April of this year, the small Christian private college along with the Alliance Defending Freedom sued the Department of Housing and Urban Development — and President Joe Biden personally — over changes in HUD rules that would prevent “discrimination” against the transgendered, by requiring the school to house a student as whatever gender with which they “identify”.
Federal District Court Judge Roseanne A. Ketchmark, a Barack Obama appointee, denied the motion for preliminary injunction filed by the college, asking her to suspend the rule changes pending the outcome of their lawsuit.
The backstory
ADF and the college sued the president of the United States, as well as the U.S. Department of Housing and Urban Development, HUD Director Marcia L. Fudge, and Acting Assistant Secretary for Fair Housing and Equal Opportunity Jeanine M. Worden as defendants in a federal lawsuit to prevent implementation of an executive order signed by Biden on the first day of his presidency. The order prohibits discrimination by federal agencies on the basis of gender identity, as well as a HUD directive under the fair housing act requiring aggressive prosecution of alleged discrimination.
The memorandum says HUD has interpreted prohibitions in the Fair Housing Act against discrimination based on sex or sexual orientation to include gender identity. However, the act does not — at any point — mention “gender identity” as protected under the FHA.
The lawsuit — noting several First Amendment violations — alleges the directive is a “substantive regulation” under the law, and that both Biden and HUD have violated federal laws regarding how regulations may be promulgated.
“This directive was issued without any notice or comment opportunities for the public,” Ryan Bangert, ADF Senior Counsel and Vice President for Legal Strategy said in a phone interview at the time. “It was issued outside the normal process that should be followed under the Administrative Procedure Act.
Because there was no notice of the directive — nor opportunity for public comment, the lawsuit argues — the regulation is illegal on its face and should be set aside.
The lawsuit also noted First Amendment violations based on “sincerely held beliefs” of the plaintiffs.
The hearing
At the hearing, ADF attorney Julie Blake argued that the rule change was enforceable, and while there were no complaints against the college’s housing practices currently, the college was proactively addressing the issue.
“The college need not wait for an actual prosecution or enforcement action before challenging a law’s constitutionality,” Blake said, according to the Springfield (Mo.) News-Leader.
Attorney for the defendants James Luh argued the memorandum was “not directed at the college and does not specifically address the kinds of issues the college has raised here — showers, or roommates.”
In a phone interview on May 27, Bangert said the argument is disingenuous at best, as while the memo may not have been aimed at the college, but — because dorms are considered multi-family housing by HUD, and thus under their jurisdiction — it could certainly be enforced on the College of the Ozarks.
“The directive was directed toward the enforcers federal and state,” Bangert said. “those enforcers are tasked with receiving complaints from people who claim they’ve been discriminated against.”
Bangert said those enforcers have the jurisdiction and authority to enforce against entities subject to the Fair Housing Act — which includes College of the Ozarks.
“So, the government claiming that this directive is not addressed to the university? It’s really a shell game,” he said. “it’s addressed to the enforcers, who would enforce against the universities and say ‘this is what you must do.'”
Appeal
According to Bangert, Judge Ketchmark — who has yet to issue a formal order in the case — reasoned that since the new rule was not “final,” and that since there have not yet been any claims of discrimination, she lacked authority to even hear the case.
However, the argument that the rules are not “final” is belied by the text of the memorandum itself, which states “effective immediately FHEO shall accept for filing and investigate all complaints of sex discrimination, including discrimination because of gender identity or sexual orientation.”
ADF is already preparing to file an appeal with the 8th Circuit Court of Appeals and has filed another motion for preliminary injunction, pending appeal.
In a press release, the president of the college defended his institution.
“The Biden Administration’s policy forces College of the Ozarks to decide between defending its religious liberty from government overreach or violating our core beliefs,” Jerry C. Davis said. “The government’s threats include harmful fines that could easily amount to six figures. Fair Housing Act penalties can even land people in jail. College of the Ozarks will not stand on the sidelines while our right to religious freedom is attacked. That is why we filed a lawsuit with Alliance Defending Freedom to protect our female students and the Christian education we provide.”
