Labor & Employment Law Daily Wrap Up, DISCRIMINATION—SEX—W.D. Va.: Liberty University fails to derail transgender employee’s Title VII sex discrimination claim, (Feb 26, 2025)

By Kathleen Kapusta, J.D.

Liberty espouses a belief that “Human beings were directly created, not evolved, in the very image of God, as either biologically male or female from the womb.”

Declining to dismiss the Title VII sex discrimination claim of a former Liberty University IT employee who was fired due to her decision to transition from male to female in violation of the university’s religious beliefs, a federal court in Virginia found that none of Liberty’s proposed defenses, including Title VII’s exemptions for certain religious employers, the RFRA, and the ministerial exemption, were supported by the law on the facts presented” (Zinski v. Liberty University, No. 6:24-cv-00041 (W.D. Va. Feb. 21, 2025)).

At the time she was hired as an IT apprentice in February 2023, the employee presented as male. Although, in her position, she assisted students with IT issues, a significant part of her time was spent interacting with other staff.

Termination. Five months after she was hired, the employee sent an email to HR stating that she “identified as a trans woman, had been undergoing hormone replacement therapy,...and intended to legally change her name.” She also explained that this would not alter her work performance or professional conduct. When she received no response, she sent a follow-up email and a meeting was scheduled later that day. At the meeting, the executive vice president of HR handed her a letter advising her that she had been “terminated because of her transition from her sex/gender assigned at birth (male) to the sex/gender for which she identifies (female),” which violated its “clearly defined and publicly posted Doctrinal Statement.”

Title VII exemptions. In response to the employee’s claim her termination violated Title VII, Liberty pointed to Sections 702 and 703 of the statute, which exempt certain religious employers from discrimination based on religion. It argued that these exemptions should be construed to allow it, as a religious institution, to discriminate against the employee because her transgender status bears heavily on its religious belief and thus firing her was religious discrimination, not sex discrimination.

Finding this to be a novel question of law in the Fourth Circuit, the court, after reviewing the text of Sections 702 and 703 as well as relevant case law, noted that “Title VII appears torn between two competing purposes: eradicating discrimination in employment, on the one hand, and affording religious institutions the freedom to cultivate a workforce that conforms to its doctrinal principles, on the other.”

Bostock. Although two Fourth Circuit decisions—Rayburn v. Gen. Conf. of Seventh-Day Adventists and Kennedy v. St. Joseph’s Ministries, Inc.—interpret Sections 702 and 703 narrowly and declare that the exemptions do not permit discrimination based on protected classes other than religion, the court pointed out that they were decided before the Supreme Court’s decision in Bostock v. Clayton Cnty., Ga, which expanded the term “sex” to include transgender status and “neither involved an employment decision based on a criterion which meaningfully blurred the line between a sex-based and a religion-based employment decision—as transgender status does.”

Noting that “the application of Title VII’s exemptions in cases where sex and religion are intimately intertwined remains an open question in the Fourth Circuit,” the court found that Liberty qualified as the type of religious institution contemplated by Sections 702 and 703. Thus, it turned to whether the employee’s termination was immunized by the two sections.

Although the court found no clear direction from the text of Sections 702 and 703, it noted that their legislative history showed “Congress intentionally drew a line between discrimination based upon religion and discrimination that strays into other protected classes, and it kept the line there despite proposed amendments to the contrary.”

Guiding principles. Turning again to Bostock for guidance, the court explained that while it did not address the applicability of Sections 702 and 703 to this case, it announced two important principles—an individual’s homosexuality or transgender status is not relevant to employment decisions and Title VII’s discrimination standards employ a strict but-for standard of causation that provide guidance for applying the Sections 702 and 703.

Pointing out that statutes are to be read as a harmonious whole, the court found that Bostock’s but-for standard should also apply to Sections 702 and 703. “If discharge based upon transgender status is sex discrimination under Title VII 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,” said the court, noting that “a religious motivation does not trump the bright-line rule of no but-for sex discrimination in the workplace.”

Announcing a rule adopted by the Fourth Circuit in its 2021 Billard v. Charlotte Catholic High School decision, the court explained that “[R]eligious entities are only allowed to be shielded from liability when they can show (1) the purpose of the employment decision is religious discrimination, and (2) that sex is not a but-for cause in the decision.”

Holding that Sections 702 and 703 “provide only narrow exemptions for the religious employer to discriminate on the basis of an employee’s espoused religious belief, and that an employer steps outside the bounds of this immunity insofar as it discriminates against a protected class on a but-for basis, the court found that Liberty was not entitled to an exemption under Sections 702 and 703 for firing the employee for her transgender status.

RFRA. While Liberty next argued that the Religious Freedom Restoration Act entitled it to terminate the employee, the court noted that the statute does not appear to authorize suits between private parties. Indeed, said the court, “the Fourth Circuit has observed that ‘the great weight of court authority’ holds RFRA to be inactionable between private parties.”

Rejecting Liberty’s assertion that the RFRA, as a kind of “super statute,” precludes Title VII liability here, the court explained that even if Liberty were entitled to raise RFRA as a defense, Title VII likely passes strict scrutiny and Liberty would have to show its exercise of a sincere religious belief was substantially burdened by Title VII.

Though Liberty argued that Title VII would require it to violate its sincere religious convictions by employing a person who “openly, intentionally, and unrepentantly flout[s] the Bible’s teachings on sex and gender, as articulated in Liberty University’s Doctrinal Statement,” the court found that enforcing this statute in the employee’s case “merely requires Liberty to maintain an employee who has not followed the university’s Doctrinal Statement to the letter, i.e., an employee who has sinned. It does not require Liberty to change its belief, to endorse [the employee’s] behavior, or to allow [her] to spread a new message within the organization, for example.” Thus, the court found that the RFRA provided no defense to Liberty.

Ministerial exception. Addressing next Liberty’s argument that the ministerial exception, a constitutional defense based in the Religious Clauses of the First Amendment, is a jurisdictional bar to the employee’s claims, the court pointed out that “the Supreme Court and the Fourth Circuit have both explicitly stated that the ministerial exception ‘operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar.’”

Turning to the merits of the ministerial exception defense, the court found nothing in the record to indicate the employee was a minister. Her title was secular, she worked at the IT helpdesk performing technological and administrative duties, she had no teaching duties, and she did not hold herself out as a minister. On these facts, said the court, “she was not a minister under any formula,” and the ministerial exception did not provide an affirmative defense to liability at this stage of the proceedings.

Freedom of association. Next, Liberty argued that even if the terms of Title VII apply to characterize its actions as sex discrimination, it is safe from liability under the First Amendment’s freedom of expressive association. After reviewing relevant Supreme Court precedent, the court found “there is good reason to pause and consider whether the notion of ‘association’ extends to employment, and how the Supreme Court’s expressive association jurisprudence applies to the employment context.”

Finding a question of first impression in the Fourth Circuit regarding “the collision of Title VII and expressive association,” the court found none of the Supreme Court cases it had reviewed were on point here and none demonstrated that expressive association falls away in the employment context. “In fact,” said the court, “none of these cases even suggest that the expressive association analysis should be any different in the employment context.”

After determining that Liberty engaged in expressive association related to religion, including religious worship, teaching, and evangelizing, the court found that Title VII does not significantly burden its right to freedom of expressive association. The employee worked in the IT department on technological and administrative tasks and had contact with students only regarding IT issues. “There is no evidence,” said the court, “to suggest that [she] has done anything to hamper Liberty’s associational interests, or that Liberty has been rendered unable to promote its religious views simply by dint of maintaining [her] as an employee.”

Though the court noted that it was required to defer to Liberty’s claim it opposes transgender identification and seeks to avoid any promotion of transgender status as an appropriate form of behavior, it was unable to conclude that the employee’s presence there would force it to send a message that it accepts transgender conduct as a legitimate form of behavior. “The only inference that we can draw for Liberty is that Liberty may be seen as a hypocrite for employing a transgender person when it opposes transgender identity; but the same could be said for Liberty’s employment of any other type of person who ‘sins’ despite Liberty’s opposition to sin in general.”

Noting that Title VII is a legitimate state interest, the court found that as applied to Liberty here, it satisfies rational review and does not offend Liberty’s freedom of expressive association.

Ecclesiastical abstention. Finally, the court rejected Liberty’s assertion that the ecclesiastical abstention doctrine protects it from Title VII scrutiny and liability. Liberty argued that ecclesiastical abstention should apply because the employee’s complaint raises questions “concerning Liberty University’s interpretation and application of Scripture,” as set forth in its doctrinal statement, and that the court “is not authorized to adjudicate the proper interpretation of Scripture.”

But the employee, observed the court, asked it to determine whether Title VII prohibits a religious institution from firing a transgender person, not whether Liberty has properly interpreted its religious doctrine when determining that a transgender person violates religious law and must be fired. “Far from questioning the contours of Liberty’s espoused ‘faith and doctrine,’ and far from requiring ‘extensive inquiry by civil courts into religious law and polity,’ [the employee] here proceeds in a civil tribunal and invokes no form of law other than civil law, said the court, finding the ecclesiastical abstention doctrine was inapplicable.

The case is No. 6:24-cv-00041.

Judge: Moon, N.

Attorneys: Paul Mark Falabella (Butler Curwood) for Ellenor Zinski. Daniel Joseph Schmid (Law Offices of Daniel Joseph Schmid) for Liberty University, Inc.

Companies: Liberty University, Inc.

Cases: SexDiscrimination ReligiousDiscrimination Discrimination Discharge PublicEmployees VirginiaNews