Transgender Membership in Fraternities & Sororities and Title IX

Transgender Membership in Fraternities & Sororities and Title IX

Author Stevie Tran is a 2013 graduate of Hofstra University School of Law. Tran is a member of Sigma Phi Beta National Fraternity and also volunteers with Campus Pride.  She recently passed the July 2013 bar exam in New York. Reprinted with permission from the Fraternal Law Newsletter, November, 2013.

 

Many fraternal organizations have encountered the situation where a chapter wishes to extend membership to a transgender student. Others have had alumni who notified the national organization of a legal gender change. What should a fraternal organization do? And will this decision affect its single-sex status?

Some organizations have interpreted Title IX of the Education Amendments of 1972 (“Title IX”)’s language as a requirement that they remain single-sex and that they take a strong stance against inclusion of anyone who may potentially violate their single-sex status, especially transgender members. This interpretation is incorrect and is preventing these organizations from benefiting from potential new members, current members, and alumni who are transgender.

What is Title IX?

Congress enacted Title IX to achieve sex equality in educational institutions that receive federal funding. Title IX requires these institutions to provide equal opportunities to both male and female students within its education programs and activities.

How Does Title IX Affect Fraternities and Sororities?

In short, Title IX does not affect fraternities and sororities. Rather, it regulates the university. In 1974, the Department of Health, Education, and Welfare tried to apply Title IX specifically to fraternities. In response, Indiana Senator Birch Bayh proposed an amendment to Title IX, exempting the membership practices of fraternal organizations from the statute’s reach. He made expressly clear that “[f]raternities and sororities have been a tradition in the country for over 200 years . . . [and] must not be destroyed in misdirected effort to apply Title IX.”[1]The amendment states in relevant part: “[Title IX] shall not apply to membership practices–(A) of a social fraternity or social sorority which is exempt from taxation under section 501(a) of title 26, the active membership of which consists primarily of students in attendance at an institution of higher education . . . .”[2] If the amendment did not exist, would a university lose federal funding if it recognized a “social fraternity?” The question is unanswered, and it may remain that way. Because of Senator Bayh and the amendment, the Department of Health, Education, and Welfare was never able to determine whether or not university-recognized social fraternities and sororities violated Title IX.

What Does the Amendment Do?

The amendment permits a university to recognize social fraternities and sororities without the risk of losing its federal funding. Without it, a university could only safely recognize professional and honorary fraternities.

Congress specifically designed Title IX to bind the university, not the fraternal organization. Under the language of Title IX, to retain federal funding, a university must recognize only social fraternities and sororities that have a membership primarily of students attending an “institution of higher education.” Title IX’s language says nothing about fraternal organizations and their single-sex status. Importantly, it does not impose any requirement on fraternities and sororities to remain single-sex to benefit under Title IX’s amendment. It simply permits a university to recognize single-sex fraternities and sororities without violating Title IX and goes no further than that. All aspects of membership decisions, then—including whether or not to admit transgender students—remain solely with the organization.

What Should Fraternities and Sororities Do?

Because Title IX preserves their ability to define their membership, fraternal organizations are empowered to address the inclusion of transgender members. For most, membership in a fraternity or sorority begins at initiation, the requirements of which are set forth in an organization’s inter/national bylaws and governing documents. These documents also control an organization’s single-sex status. Fraternal organizations should use these governing documents to clarify how transgender persons may participate in all levels of membership.

Alumni Members

Title IX does not reach a fraternal organization’s alumni because it covers only the programs and activities on college campuses. Therefore, anything after graduation, including the relationships of alumni members with chapters and with national organizations, is not affected by Title IX. Fraternities and sororities should make clear that alumni members who identify as transgender do not lose their membership rights.

Current Members

Inter/national bylaws and governing documents are generally silent as to whether or not an initiated member must maintain his or her identity as “male” or “female” to remain a member. Many documents, though, provide a basis for member removal “for cause” or for “conduct unbecoming a member.” Fraternities and sororities should determine that an initiated member who transitions does not violate the governing documents that are silent on this issue.[3] This is important not only because transgender persons should retain their membership rights, but also because a member who identifies as transgender has not engaged in unbecoming conduct.

Potential New Members

Most organizations do not define the terms “male,” “man,” “female,” or “woman” in their governing documents. This creates confusion for potential new members who are transgender. Fraternal organizations should define what these terms mean within their bylaws and governing documents so that transgender individuals can understand if they are permitted to become members.

Other Considerations

Can fraternal organizations say no to transgender members, then? Under the language of Title IX, fraternal organizations have full latitude to say yes or no to transgender members. Constitutionally speaking, however, the answer becomes less clear.

A fraternal organization has a First Amendment right to determine who is and is not a member. In the same way that a fraternity can say “no women” and a sorority can say “no men,” both organizations may also say, “No men/women means no transgender members.” An organization may therefore decide that its history and its governing documents strongly oppose the idea of transgender membership on any level. If your organization does take this approach, you should keep a few things in mind.

First, the current constitutional test—for better or for worse—is extremely difficult to satisfy. In other words, you can always argue your constitutional right; you just may not win. As past authors in Fraternal Law have noted, fraternities must truly “stand for something” if they wish to successfully assert a First Amendment right to association.[4] Further, when it comes to transgender members, fraternal organizations must also be aware of the non-discrimination policies that affect the specific chapter wishing to offer membership to a transgender student.

Some states and cities and many universities have enacted laws and regulations prohibiting discrimination on the basis of “gender identity and expression.” Denying membership to a transgender student, therefore, may possibly violate one of these laws or regulations. In fact, many states and universities have challenged various organizations and their membership practices as violating their non-discrimination policies. In their defense, these organizations argued that they had a constitutional right to determine their membership, and most of them failed to pass constitutional muster.[5]

Second, just because some universities and some states may not prohibit discrimination on the basis of “gender identity and expression” is not a strong basis to deny membership to a transgender student. Taking a state-by-state, university-by-university approach to transgender membership will create inconsistent results—opening up a fraternal organization to potential liability and arguably weakening its First Amendment associational claim. A fraternal organization’s governing documents should not be that malleable, with differing meanings from campus to campus and state to state.

Finally, just because you can do something does not mean you should do something.  The Boy Scouts of America are a good example.[6] They were one of the few organizations that was able to withstand a constitutional challenge and prevent gay individuals from becoming members. Although they may have had the constitutional right to make that decision, public opinion has not treated them well.

Tim Burke advised nearly two decades ago that membership decisions should be made “on the basis of the criteria contained in [an] organization’s governing documents” and that denying membership based on broad categories “into which an individual is pigeonholed . . . is an invitation to legal trouble.”[7] This advice is particularly relevant to the issue of transgender membership.  Because transgender issues are relatively new to most people, fraternal organizations may be able to successfully prohibit transgender members without resistance for the time being.  As transgender people continue to gain acceptance, however, it is unlikely that their exclusion from fraternal organizations will continue to go unnoticed.

Conclusion

As a matter of policy, transgender students should not have to guess and hope their way into fair consideration for membership in a fraternal organization. Fraternities and sororities should make clear what is required for transgender people to become members and to maintain membership as current members and alumni.