A small Missouri college is taking the Biden administration to court over a directive that allows biological men who “identify” as women to live in female-only dormitories.  

The College of the Ozarks, a Christian school with just over 1,500 students, filed a lawsuit against the Biden administration in April after the Department of Housing and Urban Development issued a directive requiring colleges and universities to open dorm rooms and other sex-specific spaces to individuals of the opposite sex.

The directive came after President Joe Biden issued his “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” 

“We’re seeing an example that, from our point of view, is out of touch with reality,” Jerry Davis, president of the College of the Ozarks in Point Lookout, Missouri, says of the Biden directive. The order will “do irreparable harm to a school like this,” Davis adds. “And it seems to me that somebody is going to have to stand up and say what this really is … . It’s an overreach.” 

The College of the Ozarks is represented by the Christian legal organization Alliance Defending Freedom. Davis and Ryan Bangert, a lawyer with Alliance Defending Freedom, join “The Daily Signal Podcast” to discuss the lawsuit and the broader implications of the case. 

We also cover these stories: 

  • The Senate Rules Committee marks up Democrats’ election legislation, which they say would expand voting but Republican opponents say would make it easier to cheat.
  • Demand for gasoline skyrockets after a ransomware attack on Colonial Pipeline.
  • New York Gov. Andrew Cuomo announces that public colleges and universities will require proof of vaccination against COVID-19 for all students returning to campus. 

Listen to the podcast below or read the lightly edited transcript.  

Virginia Allen: I am so pleased to be joined by the president of the College of the Ozarks, Dr. Jerry Davis, and Alliance Defending Freedom attorney Ryan Bangert. Thank you both so much for being here today.

Jerry Davis: You’re welcome.

Allen: Today, we’re talking about a lawsuit that the College of the Ozarks has filed against the Biden administration. But before we get into the details of that suit, Dr. Davis, I would love just to ask you to share a little bit about the College of the Ozarks. What is your mission at the university?

Davis: Well, the mission has never changed, and that is to provide a Christian education, especially for students who are without financial means. And we’ve honored that for over 100 years.

The environment here is, in many ways, different from any other college. We have a day care center program. We have a grade school. We have a high school, and then a four-year college.

The grade school and high school operate as classical Christian schools, and so the kids there meet the same requirements that the college has. That is, 90% of the entering students must show financial need. So obviously, we have many more applicants than we can take.

We have a program in patriotic education here, which is unusual for a college, the usual academic programs. We have a vocational goal, which is a mandatory work program. Students all work 15 hours a week and two 40-hour work weeks, and they do not have to pay tuition. And the same philosophy is followed in the high school.

So we’re quite different in many ways. It is a distinctively Christian institution. We take our faith commitment seriously, and then we have a cultural goal. So there are five goals here, but as a whole, the goal of the college is to develop citizens of Christlike character who are well-educated, hardworking, and patriotic.

This is done within a traditional environment. By that, I mean that students have requirements here that most colleges used to have, but they’ve dropped them. We have required Sunday service. They take military science as a part of the patriotic education program. So it’s quite different, but very meaningful, and our graduation here is higher than most colleges like us.

Allen: Wow. You’re located in Missouri. How many students do you have in the university?

Davis: We have 1,500 students, roughly, in the college and about 300 in the lab school, which is called School of the Ozarks.

Allen: OK. Wonderful. Thank you for sharing that background.

So, in mid-April, the college filed a lawsuit against the Biden administration, and the lawsuit is in response to a directive from the Department of Housing and Urban Development that requires colleges and universities to open dormitories and other sex-specific spaces to individuals of the opposite sex. This directive came after [President Joe] Biden’s January executive order titled “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.”

Mr. Bangert, could you just explain why the Department of Housing and Urban Development has issued this directive, which requires colleges to allow, for example, biological men to now be able to live in a female dorm room if they identify as a woman?

Ryan Bangert: Thanks, Virginia. And you know, this directive that was issued by the Housing and Urban Development Department is just another example of extreme government overreach, and overreach in the service of promoting a radical ideology that the majority of people in this country would not support or endorse.

The reason we filed this lawsuit was because the HUD directive directly impacts schools like College of the Ozarks—schools that are religious in nature, that have a historic mission of training their students to live lives that are consistent with religious faith.

And as part of that, the schools have historically separated their dorms by sex. That’s just part of the living out of the creed these schools like College of the Ozarks embrace. And this directive would have forced these schools to admit biological males to female dorms anytime biological males identified as female, as transgender.

That’s just the working out of a very radical ideology that’s being rammed through by the administrative state. And I think you’ve seen Biden do this over and over again throughout the first 100-plus days of his administration.

He realizes that large portions of his agenda are not popular with the American people, and so he is using the administrative state to force that agenda on the people without even affording notice and comment opportunities to the public to speak into that process as the law requires.

Allen: Dr. Davis, why did you decide this was a fight that the College of the Ozarks needed to take on? Why did you file this lawsuit?

Davis: Well, I think Ryan is correct. We’re seeing an example that, from our point of view, is out of touch with the reality, if nothing else. It’ll do irreparable harm to a school like this. And it seems to me that somebody is going to have to stand up and say what this really is, which is what Ryan said. It’s an overreach.

Apparently, the government doesn’t feel like it has to go by its own rules. I mean, they didn’t have any serving of notice and input. At least I don’t know anything about that. So that’s what they do.

And then my understanding is, if we don’t do what they say we should do, then we’re to be punished, in fact, because of our expectations, which are religious in basis. So I don’t think we had any choice.

We’ve gotten a lot of feedback from individuals by the thousands all over the United States, and I don’t believe you can sell this anywhere really. You might do it where the coastal elites live that have lost touch with the average person, but in this part of America, they would just view this as just plain crazy.

Allen: Dr. Davis, as you’ve said, the College of the Ozarks is a Christian school. So how do the religious beliefs of the university play into your decision to file this lawsuit?

Davis: First of all, it is a pervasively religious college. Students are required to take two courses in Christian worldview. And of course, a Christian worldview is based in the Bible, and we believe the Bible is clear that one man was created and one woman. And just because 200 or so years after our founding, some bunch of zealots have decided to rewrite not only our history, but redefine sex, we don’t think that’s right.

So it’s bumping up against our sincerely held religious convictions, which, there is this point, … First Amendment, that talks about freedom of religion. So the College of the Ozarks has every right to practice its religious faith. After all, we live in America. We don’t live in North Korea, or Cuba, or China, or somewhere like that.

So we need to take these things seriously and the public needs to wake up before it’s gone so far that it’ll take a stronger organization to stop it.

Allen: Yeah. This is an issue that I think concerns many, many Americans all across the nation.

Mr. Bangert, I want to ask you, Alliance Defending Freedom is on the forefront, you all have been on the forefront of so many critical cases defending religious freedom. In your mind, what is the significance of this case for Christian colleges and universities, but also for boarding schools, for summer camps, for really any institution that has facilities that are separated by biological sex?

Bangert: That’s a great question, Virginia. And I think it’s important to note that the Fair Housing Act, the statute that’s at issue here, its application doesn’t depend on receiving federal money. All it depends upon is whether or not you’re providing a dwelling place—

Davis: That’s right.

Bangert: … some sort of place to live that has permanence. And so that’s why dormitories are at issue here. That’s why dormitories are at stake.

That application can be very, very broad. It can stretch beyond colleges and universities. And that’s why this is important, because the rule as it was issued was issued under the justification that we as a society need to ensure that everyone has a roof over their head. And no one disputes that proposition. No one disputes that principle. But that’s not what’s at stake here.

What’s at stake here is forcing religious institutions that historically have taught that gender is binary, that there are two sexes, male and female, and they cannot be changed, forcing those institutions to disclaim that belief, to reject that fundamental belief that they have held for centuries, in many cases millennia, in the case of the Catholic Church. This is an effort by the government to rewrite that history and to do so by government fiat, by diktat, in the service of an ideology …

Really a lot of this goes back to critical theory. We’re trying to tear down these institutions, tear down these longstanding beliefs in the service of recreating something new. And this is all being foisted on us by an administrative state that is not being accountable to the people, that is not … even following its own laws, rules, and regulations.

And that’s the objection that we have here, that if the government had simply followed its own rules and regulations, it would have known that this hasty, ill-conceived law is trampling on religious freedoms and religious beliefs that are centuries and millennia in the making. So that’s a real problem and that’s an abuse of the administrative state.

Moreover, in the process of not following their own rules, the government is trampling on the religious freedom of all the institutions that you mentioned, but in particular, religious schools and universities. And so that’s why this case is important.

Allen: Under this directive, if at the College of the Ozarks or any other Christian university, if a male student says, “Actually, I identify as a woman and I want to live in the female dorm,” and the college says, “No,” what is at risk?

Bangert: Well, it’s a directive, and I think that it’s very clear that this is not just a matter of opinion by the Department of Housing and Urban Development. In fact, President Biden called it a rule change. So even this administration recognizes that what’s happening here is new and different.

And what the directive [tells] agencies and the federal government, that if a complaint alleging discrimination based on gender identity—for example, if a [biological male who identifies] as female asks for access to the female dorm, that could be characterized as an act of gender identity discrimination [if the student is not given access to the female dorm]. That student can complain … about this act and say, “This is discrimination on the basis of gender identity.”

The directive tells those enforcing agencies, “You have to receive that complaint. You need to actually investigate that complaint. And if you find that discrimination has occurred, you need to bring charges,” basically, for the complaint. So it has very real implications.

Allen: One follow-up question to that, Mr. Bangert. Under the directive, if a biological male says that he’s female, does he have to take any steps to show that he’s actually transgender? Or can he simply wake up one morning, say, “I’m a woman and I want to live in the women’s dorm”?

Bangert: Well, you might be surprised to hear that the directive is completely silent on that issue, and not surprising, actually. … No forethought seems to have been given to it.

So, no, the directive is completely silent on that question. And I think that’s a good question because it just points out the hasty and ill-conceived way that this thing appears to have just been thrown together within the first 30 days of the Biden administration in response to an executive order that was pinned on Day One.

Allen: Dr. Davis, what are you hearing from students at your school on this issue? What are their thoughts on this?

Davis: I’ve had students send me notes or stop me on campus and ask me about this case. I had a note from a parent who was distraught. She said, “I will do everything in my power to fight this.” And then a student sent a note over and she said, “I’m scared. Is it going to be OK?”

What’s the government trying to do here? I mean, we’re helping students who have a great financial need, and everybody says you should try to help that kind of student, but something like this will just do irreparable harm because their parents are not going to put up with it. They’re going to take them out of college. They probably can’t afford to go anywhere else, or they won’t go. So, I mean, you’re harming people that I would assume even this administration says we should help.

Allen: Yeah.

Davis: Not just with the money that we got to borrow from somewhere else to give them, but we’re harming because we’re going to interfere with their education. Their parents won’t go for it. I don’t think the students will go for it.

I don’t know anybody around here that thinks this is a good idea. Most people just kind of roll their eyes and say, “Some nut over in Washington’s come up with something else we have to deal with. And so there it is.” So I think students trust the college to do the right thing. We’ve told them that we will, and we will.

Allen: Yeah. And Dr. Davis, what would be your response to a transgender student or someone who was asking on behalf of a transgender student who says you’re discriminating against them by trying to keep them out of the dormitories of the gender that they identify with?

Davis: I’d probably suggest you need to read the handbook because all colleges are different. Religious colleges of different persuasions have different expectations, and we’re entitled to ours.

I wouldn’t have any way of knowing what somebody is when they come in here to see it. I mean, we don’t get into that, but everybody here signs a compliance form where they agree, whether they like it or not, to live in accordance and to respect the college’s conditions for admission. And it is quite detailed, and they sign their name to that, and we haven’t had this problem. I think most students would be truthful here anyway.

So I think anybody who’s sending a child to college should read the handbook, and ours is very clear.

Allen: Mr. Bangert, ultimately, what do you hope that the result of this case is? What do you want the Department of Housing and Urban Development to do to protect the rights of all students?

Bangert: Well, Virginia, first off, we’re asking the court to tell the department that it can’t enforce this directive. That’s our initial objective here. We’ve asked the court to do that and we have a hearing coming up on May 19, and we’re hopeful that we can have a good result there.

But at the end of the day, the department needs to pull this thing back because it was issued in a way that doesn’t comply with federal law. It was issued in a way that tramples on religious freedom. If the department wants to take another stab at this in a way that’s going to be consistent with the rights of the College of the Ozarks, they’re free to do so, but they need to follow the law and they need to do it the right way. And that didn’t happen here.

Allen: Yeah. Really, thank you both for your time and for joining “The Daily Signal Podcast” today. So appreciate it.

Davis: Thank you for asking.