A case winding its way through the federal courts could test the limits of the Supreme Court’s ruling that allowed employees to sue over transgender discrimination, with a Christian university arguing it must be able to oust people who are contrary to its core beliefs.
Ellenor Zinski was fired from Liberty University in 2023 after announcing she planned to transition from a biological male to a transgender female. She sued, and the school countered by asking a judge to dismiss the case, arguing it has a First Amendment right to ensure conformity to its religious tenets.
U.S. District Senior Judge Norman Moon, a Clinton appointee, declined to dismiss the case, and Liberty has appealed to the 4th U.S. Circuit Court of Appeals, based in Richmond, Virginia.
“Liberty University — absent immediate appeal in this Court — will be subject to probing and intrusive inquiries into its sincerely held religious convictions and its religious employment requirements by an individual who claims those religious beliefs are incorrect and who openly and admittedly violated Liberty University’s Doctrinal Statement,” the school, based in Lynchburg, Virginia, said in its filing with the circuit court.
The case comes five years after the Supreme Court’s ruling in the Bostock case, in which the justices ruled 6-3 that employment discrimination on the basis of transgender identity is illegal sex discrimination under the Civil Rights Act of 1964.
But the employer in that case wasn’t a religious organization.
Liberty University is — and says forcing it to keep Ms. Zinski on staff, where she was an IT employee, clashes with the Constitution.
“If the First Amendment operates as a bar to suit on the basis of Liberty University’s religious beliefs and employment requirements, which it does, then forcing Liberty University to submit to the very process of inquiry the First Amendment prohibits runs roughshod over that fundamental constitutional protection,” the school argued in its court filing.
Senior Judge Moon acknowledged in his ruling in February the novel question posed by the case.
But he said that while the Bostock case didn’t speak directly to religious employers, it established the principle that an employee’s transgender status is not relevant to employment decisions.
“If discharge based upon transgender status is sex discrimination under Title VII [of the Civil Rights Act] generally, it follows that the same should be true for religious employers, who, it has been shown, were not granted an exception from the prohibition against sex discrimination. They have been entitled to discriminate on the basis of religion but on no other grounds,” Senior Judge Moon ruled, allowing Ms. Zinski to pursue her lawsuit.
Ms. Zinski’s lawyers urged the 4th Circuit to follow Senior Judge Moon’s lead.
“In a ‘pre-discovery posture,’ the district court cannot hold conclusively whether the facts will ultimately permit the application of Liberty’s religious defenses or not; accordingly, ‘it is too soon to say’ whether a religious defense is entwined with the merits at the motion-to-dismiss stage,” her lawyer argued.
She had asked the district court to award her $300,000 in damages for her dismissal.
Mat Staver, founder of the Christian legal group Liberty Counsel, which represents Liberty University, says the 2020 precedent does not apply to the facts in the Zinski case, which could set standards for all faith-aligned institutions.
“The implications of this case extend far beyond Liberty University. If a single employee can demand that its faith-based employer abandon its religious beliefs to conform to the employee’s worldview, then religious freedom has no meaning. That means, no faith-based employer will survive,” Mr. Staver said.
“But this is precisely the reason we have exemptions for religious employers and educational institutions in federal law, which are inspired by the First Amendment,” he added.
The case Ellenor Zinski v. Liberty University is pending at the 4th Circuit, but no date for oral arguments has been set.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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