Wednesday, May 29, 2013

Student Note Addresses Transgender Inclusion in College Fraternities

In the current issue of the Hofstra Law Review, student-author Stevie Tran addresses perceived legal impediments to the participation of transgender members in college and university fraternities. Tran's note addresses two contexts that may raise questions about a fraternity's relationship with transgender members: a decision to admit as a member someone who has transitioned from female to male, and a decision to retain as a member someone who was identifying and expressing as male when they were admitted, but who later transitions from male to female.

In particular, Tran addresses the myth (apparently widely believed among fraternities as it is among women's colleges) that if a fraternity admits or retains a transgender person, Title IX will no longer allow it to exclude members of the opposite sex. Yet, as Tran explains, Title IX's only reference to fraternities and sororities is to exempt them from the general mandate that school activities be nondiscriminatory with respect to sex.  As Tran points out, there is no statutory requirement for fraternities and sororities to be single sex, and no penalty on them, or their institution, if they were to admit members of the opposite sex or transgender members. Nor does a fraternity's relationship with transgender members waive its First Amendment right to associate with members of the same sex.  Interestingly, Tran provides several examples of fraternities and sororities that have already implemented policies of transgender inclusion.  Sigma Phi Beta, for example, expressly commits to operating as a "fraternity for men," and defining eligibility to include "any individual who self-identifies as male, regardless of his sex assigned at birth or his expression or perceived expression of his gender."  SPB's policy goes on to assure that members are not disqualified because they transition after being admitted to the fraternity.

Ultimately, Tran concludes that transgender inclusion is consistent with the core purpose of and values that fraternities stand for.  Having dispelled the myth that Title IX operates as legal impediment to doing so, she argues that fraternities should serve as a model of inclusivity. 

Citation: Stevie V. Tran, Embracing Our Values: Title IX, The "Single-Sex Exemption," and Fraternities' Inclusion of Transgender Members, 41 Hofstra L. Rev. 503 (2012).