Title IX Is No Excuse to Reject Transgender Applicants to Women's Colleges

Smith College, a women's college in Northampton, Massachusetts, has made news in recent weeks (see, e.g., here, here, and here) for its widely publicized decision to refuse to consider the application of a transgender applicant.  According to the rejection letter, which the prospective student posted online, the College cited the fact that her federal financial aid (FAFSA) paperwork indicated her sex as male.  Throughout the rest of the application, however, the applicant identified as female, which reflects her gender identity. The applicant even reports having spoken with admissions "extensively" about her application, suggesting that Smith was not genuinely confused about the applicant's sex, but rather, that they were searching for a technical reason to refuse her application.  On the other hand, we don't know if Smith would have reconsidered if the applicant submitted a revised FAFSA.  So I'm not willing to suggest at this point that the College's FAFSA rationale was actually pretext for exclusion based on the applicant's transgender status.

I am, however, concerned about the role Title IX has played in public debate generally about single-sex colleges and transgender students.  Here in Northampton, our local paper ran a story this week in which the President of Mount Holyoke College, a women's college in neighboring Amherst, said that admitting someone who is not legally female would remove women's colleges from the Title IX exception for single sex colleges:  “We’re constrained by the law,” Pasquerella said. “If someone is not legally female, we can’t admit them and keep our federal funding.”

This is not correct, for two reason.  First, Title IX does not contain an exception for single-sex colleges.  Rather, the reason why Smith and Mount Holyoke are allowed to exclude men from admissions is because the statute by its terms does not apply to private college's undergraduate admissions.  See 20 U.S.C. 1681(a)(1) ("In regard to admissions to educational institutions, this section shall apply only to institutions of vocational education, professional education, and graduate higher education, and to public institutions of undergraduate higher education").   What this means is that, while Title IX does not require Smith to consider the application of someone Smith does not consider female, nor is the statute violated if Smith should do exactly that.  I think that the reason for the confusion on this point is that the statute also contains an exception for "public institution of undergraduate higher education which is an institution that traditionally and continually from its establishment has had a policy of admitting only students of one sex." 20 U.S.C. 1681(a)(5).  Back when there were public single-sex colleges, those institutions had to be careful to be consistent in the exclusion of the opposite sex, otherwise they risked falling outside the exception.  But this exception only applies to public institutions that are single-sex, not private schools like Smith and Mount Holyoke. Title IX does not need to provide an exception for private single-sex schools because, as I said before, all of private undergraduate admissions are outside the scope of the statute.  I think that the private single-sex schools see that language about "traditionally and continually" admitting only students of one sex, and misperceive its application as to them. 

Another reason why it's wrong to suggest that Title IX prevents Smith or Mount Holyoke from considering transgender students from admissions is that the statute does not incorporate a legal definition of sex.  Therefore, even if the statute did require Smith to "traditionally and continually" admit women, the law does not prevent Smith from considering transgender women to be women.  In fact, the law in other, analogous contexts, may be bending toward a definition of sex that would require such inclusion. Last year, for example, the federal agency that investigates employment discrimination adopted the broadest possible definition of "sex" for purpose of applying the law's prohibition of discrimination on the basis thereof.  This ruling signals increasing acceptance for the view that sex is not simply a matter of what is says on your birth certificate, your drivers license...or, seemingly, your FAFSA. 

I've argued elsewhere that women's colleges should be inclusive of transgender students -- both those who have transitioned from male to female prior to applying, as well as those who transition from female to male after matriculating.  Because Title IX does not apply to private undergraduate admissions, I can't argue that they must do so under the law. But neither is Title IX an obstacle to admitting transgender students. Whether mistaken or pretextual, the view that the law forbids single-sex schools from admitting transgender students is wrong. Title IX should not be part of the discussion.