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Does BYU discriminate against LGBTQ people? And does that matter for Big 12 expansion?

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The truth, as it often is, is complicated

BYU North Campus Jaren Wilkey http://photo.byu.edu/p/Downloadable%20Images/Campus%20Scenics//North%20Campus.jpg

BYU’s candidacy for inclusion in an expanded Big 12 Conference encountered a new, but not altogether unsurprising obstacle on Monday.

As first reported by FOX Sports, 25 LGBTQ advocacy groups have written a letter to Big 12 administrators, urging the conference not to include BYU in its expansion plans because of concerns that the school “actively and openly discriminates against its LGBT students and staff.”

To be completely transparent, this controversy puts me in a unique and challenging position, personally. I am a proud BYU alumnus who obviously chooses to spend a significant portion of my limited free time following, supporting and even writing about the school’s athletic teams. I am also a practicing, active Mormon who, despite my own fair share of conflicted feelings on a variety of Church policies and doctrines, continues to spend several hours every week attending church, teaching Gospel Doctrine class and generally being an upstanding member of my local ward. But I am also a strong LGBTQ ally with an extensive history of working with the movement to promote equality and acceptance for people of all sexual orientations and gender identities.

I cherish each of these elements as an integral part of my own personal identity. So you can see how that places me at a bit of an uncomfortable nexus in this current situation — as a BYU fan who desperately wants his teams to be included in the Big 12 and as an LGBTQ advocate who desperately wants more acceptance and inclusiveness, including in my own faith and school communities.

That being said, even though I’m conflicted by these latest developments (and perhaps because of that fact), I also have the opportunity to help unpack some of what’s going on here in a way that might help bring a little clarity for folks on both sides of this debate.

These are, admittedly, very complex and difficult issues with no easy answers — and I wouldn’t even begin to suggest that I’ll be able to find any solutions in this space. But maybe grappling together with what’s happening here can hopefully help us obtain some measure of increased understanding.

Does BYU discriminate against LGBTQ people?

We might as well dive into the thorniest matter first. The most complete answer to this question is that it depends. (Like I said, this is complex!)

When attempting to discern whether or not BYU’s policies (namely, the Honor Code) discriminate against LGBT people, we need to examine things at a couple different levels. The first is the legal level — and thanks to there being an actual law with actual words that can actually be enforced, this is the most straight-forward one to understand.

(Major caveat before we move forward: I am not a lawyer. I do not want to be a lawyer. I would not even claim to be competent at playing a lawyer on TV. So take my non-professional legal analysis for what it’s worth.)

Based on the letter of the law as it is written right now and has previously been interpreted, the latest iteration of BYU’s Honor Code is probably legally acceptable. BYU has made significant revisions in recent years to clarify that identifying as someone who experiences “same-gender attraction” does not constitute a violation of school policy, but that acting on those feelings does constitute a violation of the university’s behavioral standards.

It appears that this satisfies the legal requirements for BYU as a private institution, although there are undoubtedly many smart lawyers in the LGBTQ community who would disagree and could posit different ways that they would propose to attack the policy in a court of law. However, until such time as there is a successful legal challenge that results in the judicial branch ruling against the university (and I would venture to guess that such a case will be tried in the not-so-distant future), BYU is probably legally in the clear for the time being. How long that continues to be the case, especially in the face of swiftly changing jurisprudence on the subject, remains to be seen.

OK, so if BYU isn’t legally discriminating, this is just a frivolous complaint with no basis, right?

Wrong. Remember how I said we need to examine this issue on multiple levels? While BYU might be (momentarily) fine at the legal level, it’s when we get beyond the lawyer stuff that things get much more problematic.

The reality is, discrimination is much more than just a legal concept. It’s something that people experience deeply and personally in their everyday lives. As such, it’s entirely possible for people to feel oppressed or unfairly treated or unwelcome, even if the behavior causing those feelings isn’t necessarily in direct contradiction to current law.

This is undoubtedly where LGBTQ folks would take the most issue with BYU’s policies. The Honor Code’s insistence that it’s OK to be gay only so long as you don’t actually do anything that might be even remotely in keeping with this incredibly significant piece of your identity is highly problematic from their perspective — and it’s not that hard to see why, if you try to put yourself in their shoes.

If BYU is going to tell LGBTQ students that they can’t hold hands and kiss with a person they are sexually attracted to without facing disciplinary action, but that straight students are allowed (and even culturally encouraged) to hold hands and kiss with a person that they are sexually attracted to without fear of reprisal — that, in a non-legal sense, is discrimination. It may be well within BYU’s legal rights to regulate behavior in that way as a private entity, but that doesn’t mean that it doesn’t single out a particular group of people in a way that feels pretty fundamentally unfair, particularly if you are a person from that group who just wants to live an authentic life.

And that, really, is the problem here for BYU. This issue, especially as it pertains to Big 12 expansion, isn’t really a legal one. It’s a matter of perception. Whether or not the university or its supporters agree, it’s very easy to see how BYU’s policies could be easily interpreted by LGBTQ people and their supporters (which, it’s important to remember, now represent a growing majority of the American public) as placing unfair restrictions on homosexual students and staff based solely on their sexual orientation. And it’s also very easy to see how that could cause concern from those same folks that such an official policy could provide (intentionally or not) a kind of tacit institutional approval of even more discriminatory behavior by individuals in the BYU community.

Of course, BYU has its own concerns: it wants to safeguard its ability to conduct its affairs in accordance with the tenets of its sponsoring religious institution — and at present, it doesn’t appear to believe it can do that without a strictly enforced Honor Code. The university is not prepared to give that up, and it appears unlikely that those who find the school’s current approach to be problematic are prepared to let the status quo continue without making their voices heard. And therein lies the tension at the root of this and many other issues that BYU faces and will likely continue to face in their interactions with a changing outside world.

How does this impact BYU’s candidacy for Big 12 expansion?

This is the multi-million dollar question — and it remains to be seen.

The LGBTQ groups are clearly making what they consider to be a moral and ethical appeal to the Big 12 university presidents who will be the ultimate decision-makers on expansion — and who, demographics would tell us, are fairly likely to be folks who agree with them on issues of equality, at a personal level.

But as it always seems to be with the Big 12, it’s a little more complicated than that. Big 12 universities are not generally located in states that would be broadly considered to be “LGBTQ-friendly.” So while university administrators may be more inclined to share the concerns of the LGBTQ community, the taxpayers who fund and nominally own their institutions are probably much less likely to do so.

Then you have the private institutions that are already in the Big 12. While TCU seems to have a reasonably inclusive record on LGBTQ issues, Baylor’s own policy on homosexual behavior isn’t all that different from BYU’s, even after some softening of the language in recent years. Considering that the Bears aren’t going anywhere, that throws a whole other wrench into the political calculus.

So it’s all a bit murky. Who knows which factors will win out? It’s worth noting that the Big 12 undoubtedly knew that BYU had these policies before they even began considering them as a potential expansion candidate. It wasn’t a secret, so this shouldn’t be a surprise to them. So there’s that.

But it seems fairly safe to say that BYU probably doesn’t benefit from any type of mounting political pressure that cuts against their candidacy at the moment. The Cougars were already in a somewhat precarious position — with a dozen or so teams jockeying for as few as two slots, it’s hard to feel confident in your odds until the ink has dried on the page, and this is not the kind of attention that is going to help them solidify their support.

Regardless of what ultimately happens with the Big 12, these types of complex issues are not going away any time soon for Cougar fans. How BYU integrates with the greater academic and athletic worlds, particularly in a time of continued social change, could have implications beyond just athletic affiliation. As we examine these issues, we should try to do so with empathy and understanding.