America’s Founders created checks and balances in the Constitution to ensure no single branch of the government garnered too much power. They designed each of the three branches—executive, legislative, and judicial—to perform specific duties while holding the other branches in check.
But when President Joe Biden took office in 2021, he overstepped his executive authority almost immediately. On his very first day Biden issued an order redefining “sex” in all federal laws to include sexual orientation and gender identity.
This change would substantially alter the meaning of many federal laws, and that is not something the president has power to do. The Biden administration is attempting to legislate without going through Congress, and this blatant government overreach has caused major concerns for many people and institutions, including College of the Ozarks.
The Fair Housing Act of 1968
One of the federal laws affected by Biden’s unconstitutional order is the Fair Housing Act of 1968 (FHA). Enacted as part of the Civil Rights Act, the FHA prohibits housing providers from discriminating against another individual because of the person’s characteristics such as race or religion, and as amended in 1974, because of their sex.
The federal government has long applied the FHA to dorms at both public and private colleges and universities, but it has interpreted the law allow sex-specific (male and female) dorms. Thanks to Biden’s order, that long-standing interpretation has changed.
In early 2021, the U.S. Department of Housing and Urban Development (HUD) issued a directive requiring all colleges and universities to adopt the Biden administration’s new definition of “sex” in federal law. HUD illegally deprived the public of notice and an opportunity to comment before issuing this rule change.
By prohibiting discrimination on the basis of “gender identity,” HUD’s directive requires schools to allow male students who identify as female, and vice versa, into the opposite sex’s dorms, showers, and bathrooms. This threatens the safety and privacy of all students, particularly women. It also violates the First Amendment rights of religious colleges, and the right to comment before issuing a rule change.
College of the Ozarks’ lawsuit
For over 115 years, College of the Ozarks in Missouri has operated with faith in Jesus Christ as its guiding light. As part of its Christian faith, the college believes biological sex is unchangeable and operates its dorms accordingly.
HUD’s new rule would force the college to violate its beliefs by allowing males in girls’ dorms, showers, and bathrooms. It would even force the college to assign males as roommates with females. If the college declines to follow the new rule, it faces fines of up to six figures, punitive damages, attorneys’ fees, and even jail time in extreme circumstances.
College of the Ozarks cannot violate its faith by allowing males in girls’ private spaces, which is why Alliance Defending Freedom helped the college file a lawsuit against the Biden administration. Government officials cannot force religious institutions to go against their beliefs, especially when they use illegal edicts to do so.
Why does this case matter?
ADF attorneys filed a lawsuit on College of the Ozarks’ behalf to protect its right to be free from illegal bureaucratic mandates. Unfortunately, the U.S. Court of Appeals for the 8th Circuit erroneously ruled that the college could not yet challenge the rule change that threatens its religious freedom.
Instead, the 8th Circuit claimed that College of the Ozarks must wait until the Biden administration drags the school into burdensome enforcement proceedings before it can file a lawsuit. But that is not what other courts say about suing federal agencies.
When government bureaucrats illegally change the rules to threaten our freedoms, we have a right to challenge those actions in court. We don’t have to wait until we are dragged into years of investigations, issued crippling fines, or thrown in jail before we can sue.
Unfortunately, the U.S. Supreme Court declined to hear the college’s case, leaving the issue unresolved. We are hopeful it will soon take up related cases challenging both the administration’s overreach and the federal government’s attempts to erase distinctions between males and females in the law.
Regardless, ADF will continue to confront government overreach and hold the Biden administration accountable, and College of the Ozarks will continue to operate according to its Christian beliefs. ADF intends to remain vigilant to protect religious freedom when the Biden administration decides it is politically advantageous to begin enforcing this and other illegal rules against religious institutions.