Houston Chronicle | Samantha Ketterer | Aug. 23, 2023

Veronica Penales moved from Waco to Washington, D.C., but can’t seem to put Baylor University in the rearview mirror.

Her Title IX complaint remains the sticking point after the U.S. Department of Education last month affirmed the Baptist-affiliated institution's exemption from sexual harassment claims on religious grounds. She fears what it will mean for her as well as current and future LGBTQ students at the private university.

“I know signing up for the lawsuit meant I was going to see it through to the end,” the 22-year-old alumna said. “But I graduated, left Baylor, and it feels like I’m sucked back in.”

The agency’s exemption came after Baylor President Linda Livingstone in May wrote the federal government asking for several complaints to be dismissed, including Penales’. While Livingstone said Baylor welcomes all LGBTQ students, she argued that the university’s “control” by a predominately Baptist board of regents invokes the exemption for a handful of cases involving gender and sexual identity.

Any Title IX requirement that Baylor “must allow sexual behavior outside of marital union between a man and a woman” and that contradicts the distinction between men and women, is inconsistent with the school’s tenets, Livingstone wrote in a letter to the Department of Education.

“Baylor ‘affirms the biblical understanding of sexuality as a gift from God’ and requires ‘purity in singleness and fidelity in marriage between a man and a woman as the biblical norm,’ ” she said.

The exemption to sexual harassment complaints regulated under Title IX has been claimed but not applied to the complaints themselves. Those could be dismissed in a separate process, said Paul Southwick, director of the Religious Exemption Accountability Project, a civil rights organization that filed Penales’ complaint.

Religious schools are not automatically exempt from Title IX discrimination complaints, which include the failure to provide equal athletic opportunity, sexual harassment and discrimination based on pregnancy. Some institutions have successfully proved the exemption. But Southwick said he has never seen this sort of request related to the harassment of queer students. 

“It would be a terrible precedent saying a school can take federal money and not have to guarantee basic school safety for LGBTQ+ students, essentially eliminating any obligation of the university to prevent or remedy sexual harassment,” Southwick said.

In an email last week to students, faculty and staff, Livingstone denied that Baylor would stop or modify how it would provide Title IX protections to LGBTQ students. There will be no changes to Baylor’s practices related to sexual harassment, and those allegations will continue to be investigated, she said.“We have taken and will continue to take meaningful steps to ensure all students – including members of the LGBTQ community – are loved, cared for and protected as a part of the Baylor Family,” Livingstone said. “This is a narrow, yet complicated legal matter that has implications for all religious-based universities, not just Baylor. Accordingly, we are responding to current considerations by the DOE to move to an expanded definition of sexual harassment, which could infringe on Baylor’s rights under the U.S. Constitution, as well as Title IX, to conduct our affairs in a manner consistent with our religious beliefs.”

Penales and others who support LGBT rights at Baylor say they can't see how the university can have it both ways.

“A claim like this is dangerous," Penales said. "They’re using their religion as an excuse to back their homophobic beliefs. That hurts me, because the DOE said that was OK, and that’s just not.”

The queer community has already struggled to find its place at Baylor. Students worked for years to charter Gamma Alpha Upsilon, an LGBTQ student group, but were ultimately unsuccessful. After a series of listening sessions, however, the university last year granted its first charter to a queer organization, called Prism, to represent the interests of LGBTQ students.

Penales advocated heavily for LGBTQ students in college, spurred by personal attacks she experienced online and on campus. She was out in high school but went back in the closet upon starting school at Baylor, having read news coverage about Gamma’s battle with the university.

When Penales decided to come back out, she said someone left a Bible with “anti-LGBT” passages at her door with a note saying, “I’m praying for you.” An anonymous student also left many Post-it notes on her door written with a homophobic slur, according to a lawsuit.

She made pro-LGBTQ policies her mission at Baylor, becoming involved in College Democrats and student government. There, Penales wrote a bill called “No Crying on Sundays,” which asked the university for a reinterpretation of its Human Sexuality Statement.

That statement remains intact, affirming “the biblical understanding of sexuality as a gift from God” and encouraging students struggling with such issues to seek counseling or spiritual support.

“Temptations to deviate from this norm include both heterosexual sex outside of marriage and homosexual behavior,” the statement reads. “It is thus expected that Baylor students will not participate in advocacy groups which promote understandings of sexuality that are contrary to biblical teaching.” 

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A growing number of students, faculty, staff, alumni, Baptist ministers, donors and parents have signed onto a petition that refutes the notion of Baptist "control," which Baylor used to gain the exemption. The letter describes how Baylor over time took on increasingly doctrinal perspectives, creating discontent and leading the school in 1990 to break its complete control by official Baptist organizations.

"As Baylor family members, we believe the university statements in its letter to DOE suggesting that Baylor's governing body, the Board of Regents, operates as a religious institution with controlling doctrine are fallacious," they wrote. "Neither the Baylor Board of Regents nor any other body is the 'high priest' that mandates the beliefs of those who walk in the Baptist faith."

Southwick will make that same argument as part of a lawsuit his organization lost to the Department of Education, where Penales and dozens of other college students asked for a declaration that religious exemptions applied to LGBTQ students are unconstitutional. 

The petitioning Baylor community members also referenced past Title IX troubles in its plea that the university reform its treatment of LGBT students. They hoped Baylor had overcome its "blind spots" in Title IX after a far-reaching investigation uncovered that the university and its athletic department systematically and for several years failed students who were sexually assaulted, they said, but the effort to seek a religious exemption was "deeply troubling."

“A lot of people are losing hope," Penales said. "I lost hope in my four years to see something change positively for my community at my school. I loved Baylor enough to want to see it change, and it didn’t. That gives me a lot of grief.”

Penales said she doesn't see Baylor administrators changing their viewpoints on LGBT issues any time soon, although she's come around to the idea of getting back in the fight. 

She intended to leave her Baylor advocacy behind, but she only has to remember how alumni helped students like her during her time in Waco to realize where her work still matters.

“Some students can’t advocate for themselves yet," she said. "The few of us speak for the many.”