Morehouse Opens Admission to Transgender Men, but Will Expel Students Who Transition to Female

I was pleased to read that all-male HBCU Morehouse College has opened its admission to transgender men. But the policy also requires all students admitted to Morehouse to identify as male for the duration of their education there, saying that any student who transitions from male to female "will not be eligible to matriculate." This part of the policy is cruel and unlawful. Like the military ban, it will force people to suppress or hide their gender identities, since coming out risks rejection from the community and having to start over in another setting. It is unlawful because despite the Department of Education's backpedaling on this view, federal courts are continuing to view Title IX to prohibit discrimination against transgender students. Assuming that Title IX applies in this manner, it would be unlawful for any school that receives federal funds to expel a student because they are transgender.

Morehouse and other single-sex colleges are not exempt from this application of Title IX.  Private undergraduate institutions are exempt from Title IX in their admissions policy, which is how we have single-sex private colleges in the first place. But expulsion decisions are not admissions decisions and are not covered by the exemption for admissions.

Unfortunately, Morehouse isn't the only single-sex institution with policies that threaten expulsion to students who come to terms with their gender identity after they have enrolled. In 2011, I made this same argument about a women's college in Virginia when it adopted a policy to expel any student who transitions to male while they are enrolled. Hollins College continues to defend this policy on the grounds that Title IX does not cover transgender students. Since 2011, however, federal courts such as the Seventh Circuit as well as district courts in Florida, Ohio, Pennsylvania and others have ruled that it does, calling into question the legality of Hollins' policy, as well as now Morehouse's.

However, in contrast to Morehouse, its sister school Spelman has a transgender-inclusive admissions policy that states, "If a woman is admitted and transitions to male while a student at Spelman, the College will permit that student to continue to matriculate at and graduate from Spelman."

Mount Holyoke College Clarifies Admissions Policy in the Most Trans-Inclusive Way Possible

As of today, Mount Holyoke College, a women's college in Massachusetts, now clarifies on its website that it will consider applications for admission from transgender students.  Specifically, the website reports that the following students may apply:

• Biologically born female; identifies as a woman
• Biologically born female; identifies as a man
• Biologically born female; identifies as other/they/ze
• Biologically born female; does not identify as either woman or man
• Biologically born male; identifies as woman
• Biologically born male; identifies as other/they/ze and when “other/they” identity includes woman
• Biologically born with both male and female anatomy (Intersex); identifies as a woman

By including those who are "biologically born female" who identify as male, Mount Holyoke's admissions policy is even more inclusive than that of Mills College, a women's college in California that earlier this month welcomed applications from transgender women, but not those "female-born students, who have undergone a legal change of gender to male prior to the point of application."  In my view, Mount Holyoke's broad view of those eligible for admission recognizes that both biological sex and gender identity are relevant for defining a community whose ostensible purpose is an antidote to male privilege. Transitioning to male does not erase the privilege deficit that may have accumulated for a student during the time she was legally female.  (I've blogged about this before.)

The other thing that makes me happy about Mount Holyoke's public endorsement of trans inclusion is that it suggests the college has finally dropped its mistaken belief that admitting transgender women would somehow cause the college to lose their federal funding under Title IX (an argument that is belied by the fact that Title IX does not even apply to the the admissions practices of private undergraduate institutions).  It seemed to me that Mount Holyoke was the public voice of this argument and that it was impervious to attempts at correction.  So I'm not only glad to see Mount Holyoke adopt an inclusive admissions policy, I'm also happy to see an end to its misplaced blame on Title IX.

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.  

Student Note Addresses Title IX, Transgender Discrimination, and Women's Colleges

Recent Harvard Law graduate Katherine Kraschel's Note in the Harvard Journal of Law and Gender argues that women's colleges need not worry that admitting transgender students would compromise their ability to remain single-sex.  She explains:

Title IX provides for affirmative action not only for women, but also for the non-advantaged gender, and transgender individuals are most certainly members of a disadvantaged gender. Title IX case law, such as Miles and the cases that follow, shows that despite the dichotomous conception of gender when it was enacted in the 1970s, Title IX can embrace the notion of discrimination not only against the non-advantaged gender, but against the non-advantaged genders. While this is not well-settled law, if women's colleges strive to “be at the forefront of [transgender equality], not sort of catching up to the rest of the world,” the logical step is to end reliance upon Title IX and embrace an inclusive conception of Title IX's anti-discriminatory charge.

For more, see Katherine Kraschel, Trans-Cending Space in Women's Only Spaces: Title IX Cannot Be the Basis for Exclusion, 35 Harv. J. L. & Gender 463, 483 (2012)

Women's College in Virginia Has Policy to Expel Transgender Students

Hollins University, a private, women's college in Virginia, is in the news this week for its policy to expel transgender students who "self-identify" as male and have taken one of the following steps towards transitioning to the male sex: "1) begins hormone therapy with the intent to transform from female to male, 2) undergoes any surgical process (procedure) to transform from female to male, or 3) changes her name legally with the intent of identifying herself as a man." This is an unfortunate policy because it denies compassion and withholds tolerance to students who may need them most. Instead, it places transgender students in difficult position of having to choose to either uproot themselves from their education and community, or else suppress and deny their deeply-felt identify.

Hollins appears to be the only women's college in the country with such a strict policy to exclude transgender students who have already matriculated, though other women's colleges have been reported to have engaged in other acts of discrimination, including rejecting a transgender alum from conducting alumni interviews (Wellesley) and not letting a transgender student serve as an overnight host for prospective students (Smith).

The Chronicle of Higher Education reports (see also permanent link, subscription required) that while Hollins University has had this policy for four years, it has recently come under fire from some Hollins students and faculty, prompting a university diversity committee has decided to study it. Even though no one has been expelled under the policy, several students are believed to have transferred because of it. One faculty member, Women's Studies professor Susan Thomas, worries that the policy "sets the university up for problems."

As a legal matter, I agree -- the policy does set the university up for problems under Title IX. As a private institution, Hollins's undergraduate program is exempt from having to comply with Title IX's prohibition on sex discrimination. But this exemption is, by its terms, limited to admissions. See 38 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.") Even if Hollins could legally exclude applicants because of their sex (either their natal sex, or their transitioned sex), this exemption does not give a women's college license to discriminate against students who have already matriculated by expelling them because of their transitioned sex. Nor does the exemption allow schools like Smith and Wellesley to discriminate against transgender students and alumni in the manners described above.

I hope that Hollins reconsiders this policy, in light of its legal, ethical, and educational shortcomings.

Title IX and Transgender Students at Single-Sex Colleges

Inside Higher Ed recently had an article about transgender students at single-sex colleges. Like this piece in the Boston Globe a few years ago, the article addresses the increasingly common practice of re-issuing diplomas to reflect the new names and gender identities of alums who transition after graduation. Deciding who to admit, however, is a more challenging issue for single-sex colleges. Most women's colleges consider any student who is female on their application to be eligible for admission, and have no policy of excluding anyone who transitions or declares a non-female gender identity once enrolled.

The article mentions the role of Title IX in this regard, stating that under the law, "men’s and women’s colleges may admit only students whose legal documentation shows they are of the gender that a particular institution serves." I think this representation of Title IX is questionable, however, as I'm not aware of any aspect of the law that invokes a "legal documentation" test for determining a person's sex. Such a standard would not exactly provide workable clarity, either, because some states make it easier to change one's sex designation than others. Moreover, the decision to apply for new ID may come at different stages of transition for different folks. So, a "legal ID" test would require an all-women's school to consider for admission an individual who has surgically and hormonally transitioned from female-to-male, but who hasn't yet applied for, or received, a re-issued birth certificate (or drivers license, or some other legal ID). And that school would have to exclude someone who has changed his sex designation, but not his body, in accordance with a male gender identity, as well as someone who has physically transitioned from male-to-female but still does not have a female gender marker on her ID.

No court or regulatory interpretation has endorsed such bright-line rules. And I think the law's indeterminacy around the concepts sex and gender allows all of these hypothetical students make a case for eligibility for admission. A court could interpret Title IX's prohibition on sex discrimination to forbid a school from discriminating against someone who is born female but presents as male, if it decides to interpret presenting/identifying as male as an example of gender nonconformity. A court could also interpret Title IX's prohibition on sex discrimination to require an all-women's school to consider a male-to-female transsexual, because she, like other people who identify as female, is a woman. If both were legally required, an all-women's college would be open to anyone who is now female or who has been female in the past.

Is that a position that all-women's college could defend? This depends on the reasons all-women's colleges provide for remaining single-sex in the first place. If the purpose of all-women's college is to compensate for the male privilege that exists in education and in the wider world, they could certainly accept male-to-female transsexual students on the grounds that they have reduced their access to male privilege by virtue of their transition, as well as female-to-male transsexual students, who have been excluded from male privilege in the past. (For example, a female-to-male engineering student does not by virtue of a college-age transition overcome gender stereotypes that may have obstructed his K-12 education in science in technology.)

The bottom line for now, however, is one the article gets right. College admissions policymakers, like Title IX policymakers will be increasingly confronted with questions about transgender students' eligibility for single-sex colleges and other single-sex spaces. In my view, they should and can legally strive to be as inclusive as possible.

U.S. Commission on Civil Rights to Look at Admissions, Athletics

InsideHigherEd.com reports today that the U.S. Commission on Civil Rights has commenced an "inquiry" into admissions standards that may be favoring male applicants who are increasingly underrepresented in the student bodies of many liberal arts colleges. The article suggests that the Commission (which does not have enforcement authority, only the power to make recommendations) may be using concern for female students as cover its real target, Title IX's application to men's sports. Colleges would not need to rely on discriminatory admissions standards if they could only attract more male applicants; they could do this by offering more athletic opportunities for them, but they are, sadly, hamstrung by Title IX.

This line of thinking is logically flawed, factually inaccurate, and steeped in stereotypes. First, no one is forcing colleges to lower their academic standards for male applicants. There is certainly no mandate that colleges admit men and women in equal numbers, just as there is no requirement that their student bodies are proportionate to the nation's racial demographics (imagine the uproar if that were so!) Colleges are afforded at least as much flexibility to consider sex in admissions as to consider race (the plus factor approach) and within constitutional limits, it is up to school how to incorporate academic standards and diversity into admissions decisions.

Second, Title IX is not the reason schools can't add men's sports -- the fact that men still have more athletic opportunities than women, both in absolute and relative terms, is the reason why schools can't add men's sports. Third, at least some colleges are adding men's sports -- we've blogged about it, see here, here, and here, e.g.! -- so even taking it out of the context of admissions, the suggestion that Title IX is preventing schools from expanding their men's athletic programs doesn't withstand scrutiny.

Fourth, the idea that colleges need to solve their admissions problem by adding sports for men operates from the annoyingly premise that it is more important to satisfy the athletic interests of men who are not, apparently, otherwise bound for college than it is to satisfy the women who are already there -- women are interested in sports too, and women have fewer athletic opportunities even though there are more of them in college!

Last, it sells men short; it suggests that they need to be tricked into applying to college by an admissions brochure with a lot of pictures of guys playing sports. To again use the race as an analogy, imagine the outrage if a government office expressed sympathy with colleges seeking to boost their racial diversity by adding athletic opportunities for minorities. Some would argue that such a plan exploits the minority student athletes and stigmatizes the minority student population in general by suggesting they otherwise would not be college bound. Some would argue that such a strategy provides clear evidence of the school's intent to promote athletics above academics. Others would argue that it's unfair to the white kids to limit their opportunities. All would be a little bit right.

It will be interesting to see what the Commission's inquiry reveals. Hopefully, it will steer clear of the misinformation and stereotypes discussed here.

UPDATE 11/3/09: More from today's Inside Higher Ed here; and Women's Sports Blog has a good take on it here.

College Admissions: A "Thumb on the Scale" for Men?

US News & World Report offers this article on the new trend in college admissions: giving boys a boost in the admissions process to maintain a roughly equal number of men and women undergraduates at an institution. The article points out that women tend to have higher overall scores from high school (considering both the SAT and high school grade point average), meaning that in order for colleges to admit equal numbers of men and women, they need to "put a thumb on the scale" to give men a boost.

Some schools, such as Lake Erie College in Ohio and Husson College in Maine, are "making extra efforts to attract male applicants by creating football teams." Further, college counselors are sometimes advising male applicants to "emphasize their maleness," says Steve Goodman, a longtime independent college counselor. He encourages male students to submit pictures or trumpet their sports activities "anything to catch an admissions officer's eye." (The article doesn't say what a male applicant who's interested in, say, the art club, is supposed to do to emphasize his maleness).

This article is fascinating from numerous angles: is there a need for a certain ratio of men and women at a college to achieve an optimum learning environment? If so, does that rationale carry over to racial or ethic groups? Certainly this quota system for admitting male students, if used in a racial context, would have affirmative action opponents screaming for reform (or lawsuits).

Also, what does it mean to be representatively male at a school? Some colleges and college counselors seem to think that athletics is the key, hence the creation of football teams or emphasizing one's athletic accomplishments in the application process. But what does this say about gender stereotyping and the expectations that we have for male students in our schools, or in society generally?