The U.S. District Court also stated that maintaining sex-separated bathrooms for religious reasons in the pre-school is protected by freedom of religion.
by Massimo Introvigne
On October 20, 2023, in the case of “Darren Patterson Christian Academy v. Roy,” the U.S. District Court for the District of Colorado rendered yet another pro-religious-liberty decision in the ongoing battle between freedom of religion advocates and states trying to enforce anti-discrimination statutes against religious organizations.
Colorado voters approved in 2020 through a referendum the institution of a Colorado Universal Preschool Program, which guarantees to children from low-income families preschool services free of charge. The state establishes a list of approved pre-school providers, and the families may indicate the providers they prefer for their children. The state will then pay to providers the tuition fees for the participating pupils.
The problem is that to be included in the list of approved providers, pre-schools should not discriminate “on the basis of gender, race, ethnicity, religion, national origin, age, sexual orientation, gender identity, citizenship status, education, disability, socio-economic status, or any other identity.”
Darren Patterson Christian Academy is a private school located in Chaffee County, Colorado. It is the only Christian school in the county that offers a preschool, but it also teaches elementary and middle school students. It defines itself as a “Christ-oriented” institution and only hires Christian teachers. In addition, as the decision summarizes, Darren Patterson Christian Academy “believes that there are ‘two unique, immutable sexes—male and female,’ and aligns its policies accordingly. This includes mandating sex-separated bathrooms and dress codes based on boys’ and girls’ biological differences. The school also forbids using pronouns that do not correspond to a student’s or employee’s biological sex.” And it requires from teachers and other employees “abstinence from sexual activity outside of the context of a marriage between a man and a woman.”
The Academy voluntarily disclosed all these provisions to the State of Colorado, seeking an exemption from the non-discrimination clause that would still allow it to be included in the Colorado Universal Preschool Program. The state answered negatively. Supported by a coalition of Christian educational institutions, the Academy sued the state claiming that the non-discrimination clause violates freedom of religion and confronts conservative Christian preschools with the unsolvable dilemma of either betraying their religious principles or being excluded from the list of approved providers.
Noting that “the Supreme Court has thrice held that a state may not exclude religious observers from receiving otherwise available educational funding because of a school’s religious status or practice,” the District Court granted a preliminary injunction in favor of the Academy.
The judge admitted that the Academy “seeks to hire only coreligionists, and to continue internal policies related to gender distinctions rooted in religious beliefs. These polices violate the [Colorado] Department [of Early Childhood]’s non-discrimination standards for participating preschools… Plaintiff [Darren Patterson Christian Academy] asserts its ‘right to participate in a government benefit program without have to disavow its religious character.’ But the Department’s policies infringe on that right, which forces Plaintiff into the unconstitutional choice of abandoning religiously motivated practices or foregoing otherwise available public funding. The First Amendment forbids imposing such a choice.”