NEW YORK – Caught between his Christian faith and what some Americans view as a deepening assault on transgender rights, Zayn Silva remembers the moment he decided to fight back.
Silva recalls stepping out of an Uber in 2020 and sitting on the sidewalk after receiving a call from the Christian seminary school he applied to. The admissions officer said he respected that Silva had identified himself as a transgender man. But the answer was still “no.”
“I hung up,” he said, ”and, to be honest, I cried on the corner.”
Silva is one of dozens of LGBTQ+ Americans suing the U.S. Department of Education, challenging a law that allows religious colleges to discriminate based on the sex of students and applicants – even when those schools receive millions in federal funding.
The plaintiffs include a former student at Bob Jones University in South Carolina who said she was disciplined for social media posts about lesbian relationships. Another woman said she was fired from her on campus job at Brigham Young University in Utah after she cut her hair “to better match my gender expression.” Some students were expelled. Others, like Silva, never made it through the door.
‘Suffering is great’
The lawsuit, pending at the U.S. Court of Appeals for the 9th Circuit, has arrived at a moment when federal courts – including the Supreme Court – are increasingly siding with religious groups over gay and transgender rights. Conservative states have enacted laws curbing those rights and some polls suggest that while a majority of Americans support transgender rights many are uneasy with the pace of change around gender identity issues.
Last month, in one high-profile example of how LGBTQ+ rights are losing ground, the Supreme Court backed a graphic artist who will decline to design wedding websites for same-sex marriages. A federal appeals court in Cincinnati this month ruled that a Tennessee ban on gender-affirming care for transgender minors may be enforced for now. An appeals court in Chicago earlier this month ruled that a Catholic high school in Indianapolis was free to fire a gay guidance counselor.
Silva and his attorneys know they are fighting against the current. Paul Southwick, director of the Religious Exemption Accountability Project, which is representing Silva, balked at advice from other LGBTQ+ advocacy groups to wait for a more favorable legal environment.
“The timing is right because the suffering is great,” Southwick said. “The number of queer students in these spaces who are out or closeted is larger than it’s ever been before.”
Counterargument: Lawsuits threaten religious ‘choice’
Silva applied to Nyack College. The school is now known as Alliance University, located in lower Manhattan. In a statement, the school said it is “wholeheartedly committed” to sensitivity for all students. But, it said, as a Christian institution it requires applicants to sign a document that “they must at all times adhere to our code of conduct and principles of faith.”
Gregory Baylor, senior counsel at Alliance Defending Freedom, said private religious schools should be able to make choices that align with their beliefs without government interference. Baylor’s group has filed several successful religious challenges, including the recent Supreme Court case involving same-sex wedding websites, and it represents several religious colleges involved in Silva’s case.
“There are plenty of schools that have very different perspectives on some of these questions and we respect that,” Baylor said. “The lawsuits are trying to diminish those choices.”
Those arguments aren’t foreign to Silva, who grew up in a Pentecostal church where he attended service every day. Deeply religious, Silva is a fixture – and an elder – at his Presbyterian church in Brooklyn and he represents the church in an organization that helps direct the ministry and mission of Presbyterians in New York.
Silva said it was an especially challenging time, given his upbringing and faith, when he realized at around age 12 that he was no longer comfortable as a female.
After years of fighting it, Silva decided to align his faith with his identity, helping young people at his church and their parents navigate their own sexuality and gender identity. It was the kind of work Silva had hoped to build a ministry out of after attending seminary at Alliance − not only strengthening his own faith, but also helping others. He wasn’t naïve about his prospects of attending a Christian school. It’s why Silva, who is 31, reached out to Alliance before he applied, to gauge their willingness to accept a transgender man. Silva said he was told to apply. “Sweetie,” he recalled a representative at the school telling him before he applied, “come as you are.”
It was exactly the kind of reception Silva expected from a faith-based university.
Broader trend: Biden versus federal courts
The law at issue in Silva’s case, known as Title IX, bars discrimination on the basis of sex for schools that receive federal funding. The Biden administration announced in 2021 that it would reinterpret that law to also prohibit discrimination on the basis of sexual orientation and gender identity. That announcement has drawn lawsuits from conservative states. The administration is working on a more formal change to federal regulations related to Title IX.
No matter what happens with those efforts, though, the exemption for religious schools would remain in place. Southwick’s lawsuit asserts taxpayers spent $4.2 billion on religious universities in 2018. A Department of Education spokesman declined to comment.
Led by the Supreme Court, federal courts have increasingly found that the free exercise clause in the First Amendment protects religious entities from discrimination claims. Earlier this month a federal appeals court ruled that a Catholic high school in Indianapolis was free to fire a gay guidance counselor because she performed at least some religious duties, for instance, and so fell under an exemption from workplace discrimination rules applied to ministers. In 2021, the Supreme Court ruled that a Catholic foster care agency in Philadelphia could turn away gay and lesbian couples as clients.
A U.S. District Court in Oregon dismissed Silva’s case in January. The judge, appointed by President Bill Clinton, wrote that the exception appeared to be related to the government’s objective of accommodating religious exercise and that Congress did not appear to have a discriminatory intent when it approved the language.
Silva said he believes the fights playing out in courts are distorting a reality for many Christians in church: Plenty of religious families, he said, are looking for ways to reconcile their faith and sexuality without being humiliated or ostracized − to, in Silva’s words, help them “accept” and “feel loved.”
For Silva, the legal losses have only strengthened his resolve.
“Going through all of this and hearing the stories of other trans folks – how they have been isolated and rejected – it really validated for me that this is what I was supposed to be doing,” Silva said. “This journey has increased my faith significantly.”
