The College of the Ozarks has appealed a federal judge’s sua sponte dismissal of their complaint challenging a Fair Housing Act memorandum that would require the school to place biological males in female dormitories and assign them as roommates.
U.S. District Judge Roseann Ketchmark, who was appointed by former President Barack Obama, dismissed the lawsuit holding that, among other things, the court lacked subject matter jurisdiction.
“These claims fail for lack of standing due to Plaintiff’s inability to establish an injury-in-fact,” Judge Ketchmark wrote in her June 4 opinion. “Plaintiff has not alleged it is being investigated, charged, or otherwise subjected to any enforcement action pursuant to the Memorandum; any application or enforcement of the FHA, HUD regulations, or the Memorandum to discrimination because of sexual orientation or gender identity; or the FHA, and HUD’s implementing regulations.”
The Fair Housing directive prevents universities from segregating students based on sexual orientation or gender identity when they occupy housing and in policies that govern those dwellings.
“What obligations may flow from the Fair Housing Act and what steps the agency might take in a specific context to enforce those non-discrimination protections aren't really at play here,” said Karen Loewy, an attorney with Lambda Legal Defense and Education Fund, a nationwide civil rights organization catering to LGBTQ people. “There's nothing going on at College of the Ozarks right now with regard to HUD and the Fair Housing Act that actually creates a case or controversy that the judge would have jurisdiction to rule on.”
As previously reported, the College sued President Biden, U.S. Housing and Urban Development (HUD) Secretary Marcia Fudge, and HUD’s Acting Assistant Secretary of Fair Housing & Equal Opportunity Jeanine Worden in the Missouri Western District Court on April 15.
“What this case is challenging is a memorandum that HUD issued under their authority to interpret the Fair Housing Act and they did this because President Biden issued an executive order requiring all federal agencies that enforce sex discrimination protections to consider how the U.S. Supreme Court's decision last summer applies to the laws that they carry out,” Loewy told the St. Louis Record.
In June 2020, the U.S. Supreme Court issued a landmark ruling in Bostock v. Clayton, which directs that discrimination on the basis of sexual orientation or gender identity is necessarily also discrimination because of sex as prohibited by Title VII.
“The judge, in this case, is saying that they've issued this interpretation of what the Fair Housing Act requires that frankly isn’t controversial at all given the U.S. Supreme Court’s decision in Bostock last summer,” Loewy said.
Counsel for the College of Ozarks had argued that the new policy could have very serious impacts, not just for the College of the Ozarks, but for every Christian school and every school that houses male and female students in separate dormitories for reasons of faith or even safety.
“A transgender woman is a woman and the law requires respect for people's gender identities,” Loewy said. “Where there are particular issues involving individuals, schools have all of the tools at their disposal that they always have for addressing concerns that arise between student roommates. There's nothing new or unusual about that.”
Loewy further asserts that Judge Ketchmark’s ruling is procedural, not substantive.
“Any obligation that a housing provider has to ensure non-discrimination for transgender students flows from the statute itself,” Loewy added. “The guidance is clarifying what the law requires. The ruling here is really about whether or not the court has the authority to address any of those issues right now.”