Like a Missouri David facing the Federal Goliath, the small, Christian-oriented College of the Ozarks near Branson, Missouri, is challenging an executive order and housing regulation that requires religious schools to open their female dormitory rooms and showers to men who identify as women.
The College of the Ozarks, which has long maintained strict segregation of men and women in residence halls on its campus, along with the Alliance Defending Freedom, has named 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. “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.
“Notice-and-comment requirements mandate that an agency (1) provide notice to the public of the proposed rulemaking, typically by publishing notice in the Federal Register, (2) give interested parties an opportunity to submit written data, views, or arguments on the proposed rule, and consider and respond to significant comments received, and (3) include in the promulgation of the final rule a concise general statement of the rule’s basis and purpose,” the lawsuit reads.
“Our argument is that this rule change is invalid because it wasn’t done correctly,” Bangert said. “There was no notice given, no opportunity to comment, none of the deadlines for APA were provided. So this rule is procedurally invalid right out of the gate.
“I mean, it’s the very definition of federal overreach.”
Moreover, the law requires that a new regulation cannot take effect for at least 30 days after publication but the HUD directive states explicitly “effective immediately.”
“This directive imposes a blanket rule on everyone,” Bangert said. “Including religious colleges and universities that have historically separated men and women into separate dorms — just like College of the Ozarks. It now requires those institutions to house men in women’s dorms if the men ‘identify’ as women.
“That’s why we filed the lawsuit. To allow religious institutions — like College of the Ozarks — to continue their long-held, traditional policy of separating them based on biological sex.”
The lawsuit also notes, that prospective students are made aware of these policies when they visit campus, as well as a strict code of conduct that prohibits premarital and extramarital sex — whether between opposite-sex or same-sex couples, as well as smoking, drinking and a host of other activities fairly common on secular campuses — and students agree to these conditions prior to enrolling.
Additionally, the college takes very little in the way of federal money, but remains subject to HUD requirements in its dorms as those are classified as “rental housing,” so Title IX regulations simply don’t apply. It’s a case of local meddling by the federal government, according to Bangert.
“It just shows how far-reaching and sweeping this goal of the Biden administration has to remake society,” he said.
For now, pending an answer to the lawsuit — which the government has yet to file — ADF and College of the Ozarks are asking for a preliminary injunction which would halt enforcement while the case moves forward in the courts.
The case is in front of Judge Roseann Ketchmark, of the U.S. District Court for Western Missouri and a hearing on the injunction is scheduled for mid-May.
College president Jerry Davis provides additional perspective in his National Review column entitled “Uncle Sam Does Not Belong in Girls’ Dorms or Showers”.
