The issue revolves around a federal law – Title IX, a civil rights statute that prohibits discrimination on the basis of sex by education programs receiving federal assistance. The statute exempts religious schools from those protections if it violates their deeply held beliefs.
Title IX has traditionally been interpreted as protecting women in federally funded schools based on their biology. More recent interpretations – including in Bostock v. Clayton County, a case that reached the Supreme Court last term – have argued that it also protects against discrimination based on sexual orientation and the gender with which someone identifies.
The Department of Justice (DOJ) is currently defending Title IX's religious exemption provision in a federal lawsuit in Oregon where dozens of former students sued religious colleges for alleged discrimination.
On Tuesday, DOJ filed a motion to prevent religious liberty advocates from intervening in the Oregon case. In doing so, DOJ held that the outside firms were unnecessary given that it shared the conservative advocates' ultimate objective.
In its filing, the department also included a line saying it would "vigorously" defend religious liberty protections in court. As a result, DOJ received backlash from progressive groups who argued the department abandoned the LGBTQ student plaintiffs in the case.
Paul Carlos Southwick, director of the Religious Exemption Accountability Project which filed the case on behalf of the former students, reportedly said the Biden administration "is now aligning itself with anti-LGBTQ hate in order to vigorously defend an exemption that everyone knows causes severe harm to LGBTQ students using taxpayer money."
"It will make our case harder if the federal government plans to vigorously defend it like they have indicated," said Southwick on Tuesday.
Although the Biden administration has advanced left-leaning positions on the issue, it hasn't completely abandoned enforcing religious exemptions as required by law. A highly-controversial executive order signed by Biden in January raised concerns among Catholic bishops. However, Bostock's majority opinion has been interpreted as leaving space for religious exemptions.
Another Biden executive order – 14021, which was signed in March – directed the Education Department to review its policies and ensure that they adhere to the administration's vision for a discrimination-free educational environment.
It also contained a provision that read: "This order shall be implemented consistent with applicable law and subject to the availability of appropriations."
And as DOJ said in its memo, the administration's policy positions "do not abrogate the government’s duty to defend federal statutes and regulations in court as a legal matter."
DOJ's filing also indicated some flexibility in defending the exemption. "The Proposed Intervenors also have not at this time made the necessary ‘compelling showing’ that the Federal Defendants will fail to adequately represent their interests in defending the Religious Exemption as applied," it read.
"To be sure, the Department of Education is conducting a comprehensive review of its regulations implementing Title IX pursuant to Executive Order 14,021, which sets forth the current administration’s policy on guaranteeing an educational environment free from discrimination on the basis of sex
In its current state, Title IX includes an explicit exemption for "[e]ducational institutions of religious organizations with contrary religious tenets."
"[T]his section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization," it reads.
On Wednesday afternoon, the DOJ amended its filing to remove phrasing that suggested it would "vigorously" defend the religious exemption.
It also removed language indicating it shared the same "ultimate objective" as the religious liberty groups attempting to intervene.
DOJ did not immediately respond to Fox News' request for comment.