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.”
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.