UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ELIZABETH HUNTER; VERONICA No. 23-35174 BONIFACIO PENALES; ALEX DURON; ZAYN SILVA; RACHEL D.C. No. 6:21-cv- MOULTON; VICTORIA JOY 00474-AA BACON; HAYDEN BROWN; BROOKE C.; GARY CAMPBELL; TRISTAN CAMPBELL; NATALIE OPINION CARTER; RACHEL HELD; LAUREN HOEKSTRA; CHANDLER HORNING; JONATHAN JONES; ASHTIN MARKOWSKI; CAMERON MARTINEZ; MACKENZIE MCCANN; DARREN MCDONALD; SCOTT MCSWAIN; JAYCEN MONTGOMERY; JOURNEY MUELLER; JAKE PICKER; DANIELLE POWELL; SPENCER J. VIGIL; LUCAS WILSON; AUDREY WOJNAROWISCH; DANIEL TIDWELL-DAVIS; DEVIN BRYANT; SAREN CRIAG; JAMIE LORD; CONSOLATA BRYANT; JUSTIN TIDWELL-DAVIS; MEGAN STEFFEN; MORTIMER HALLIGAN, on behalf of themselves and all others similarly situated, 2 HUNTER V. USDOE

Plaintiffs-Appellants, ANDREW HARTZLER; KALIE HARGROVE; SABRINA BRADFORD; CLOVER ST. HUBERT; ALICE MURPHY; VIOLET ADAMS,

Appellants,

v. U.S. DEPARTMENT OF EDUCATION; CATHERINE E. LHAMON, in her official capacity as Assistant Secretary for the Office of Civil Rights, U.S. Department of Education,

Defendants-Appellees, WESTERN BAPTIST COLLEGE, DBA Corban University; WILLIAM JESSUP UNIVERSITY; PHOENIX SEMINARY; COUNCIL FOR CHRISTIAN COLLEGES & UNIVERSITIES,

Intervenor-Defendants- Appellees. HUNTER V. USDOE 3

Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding

Argued and Submitted July 16, 2024 San Francisco, California

Filed August 30, 2024

Before: MILAN D. SMITH, JR., MARK J. BENNETT, and ANTHONY D. JOHNSTONE, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

SUMMARY *

Title IX

The panel affirmed the district court’s dismissal of an action brought by LGBTQ+ students against the Department of Education challenging a religious exemption to Title IX, which prohibits gender discrimination at federally funded educational institutions but carves out an exception for religious institutions whose tenets mandate gender-based discrimination. The district court dismissed for failure to state a claim plaintiffs’ claims that Title IX’s religious exemption establishes a religion in violation of the First Amendment * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 4 HUNTER V. USDOE

and violates the equal protection guarantee of the Fifth Amendment, and dismissed for lack of Article III standing plaintiffs’ challenge to the Department’s implementing regulations of Title IX as arbitrary and capricious under the Administrative Procedure Act (APA). The panel declined to apply the invited error doctrine— which provides that a party may not complain on review of errors below for which he is responsible—or the waiver doctrine—which provides that issues not presented to the trial court cannot generally be raised for the first time on appeal—and proceeded to the merits of plaintiffs’ Establishment Clause claim. The panel held that Title IX’s religious exemption does not violate the First Amendment’s Establishment Clause under the historical practices and understanding test set forth in Kennedy v. Bremerton School District, 597 U.S. 507 (2022). First, the history of tax exemptions for religious organizations near the time of the Founding suggests that statutory exemptions that operate as a subsidy to religious institutions do not violate the Establishment Clause according to its original meaning. Second, case law evinces a continuous, century- long practice of governmental accommodations for religion that the Supreme Court and this court have repeatedly accepted as consistent with the Est