Do women’s colleges really need to discriminate against trans women because of federal guidelines?

Thanks to Sarah Fraas

Last year we covered the case of Calliope Wong, a young woman who was rejected from Smith because she’s trans. Some women’s colleges, like Simmons which admitted Wong, have moved to be inclusive of trans women in keeping with their mission to serve women. And then there are so-called “women’s colleges” like Smith that are continuing policies of exclusion. Two weeks ago, Smith students held another protest in favor of trans women’s inclusion at the school – and on Saturday Suzanna interviewed two members of Smith Q & A about their efforts.

The Smith administration is trying to act like this is a non-issue, a typical administrative tactic at academic institutions. They pretend the school doesn’t have an exclusionary policy and have blamed federal guidelines, claiming that if an applicant’s gender doesn’t line up on multiple government documents, including the FAFSA, their hands are tied.

UPDATE: According to Smith Q & A’s Sarah Fraas,  Smith no longer requires that FAFSA gender markers are female, “thanks to Q&A’s negotiations — Disability and Financial Aid materials do not have to have all gender markers… we do have it in writing from Admissions…

“The issue here now is Admissions application materials: transcript, letters of recommendation, and the Common Application.”

There are supposedly concerns that if they were to admit women who were not legally assigned female at birth or who don’t have all their documents in line (an absurd requirement for typical college-aged students, or really anyone), women’s colleges could lose their legal status and ability to exist — or have to exclude trans men. I’m disturbed that schools that are supposed to exist to serve women – because patriarchy – are more concerned about being able to serve men.

But upon closer inspection these concerns are unjustified, and even suggests ways student organizers can use federal policy to win on this issue. Federal guidelines don’t require schools to discriminate — but if the schools need clarification they can ask the Department of Education. 

In the guidance on Title IX and sexual assault released last week, the Department of Education’s (ED) Office of Civil Rights (OCR) included a statement clarifying that Title IX protections extend to transgender students:

“Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation.”

Harper Jean Tobin, Director of Policy at the National Center for Transgender Equality, told me that this statement was included in the sexual assault guidance because it was OCR’s first opportunity to make this public. The statement was deliberately designed to be broad and is not limited to the context of sexual assault — it applies across the board. This move brings ED in line with other federal agencies — EEOC, HUD and HHS — that have said gender identity discrimination equals sex discrimination for the purpose of federal law. We’re getting a very clear message this is the federal government’s position on anti-trans discrimination.

Advocates are currently requesting that ED release more specific guidance about discrimination faced by trans students and how it should be addressed. One of the issues that could use clarification is the federal government’s position on trans women in women’s colleges.

The link between Title IX and discrimination in admissions is not direct in this case. Sarah Fraas and Raven Fowlkes-Witten addressed this in their Feministing Five interview:

Sarah: Originally when we heard that we were really excited about it. I contacted a law professor who’ve worked with in the past, and they told me that unfortunately Title IX does not apply to private undergraduate admissions. But if a trans woman was treated unfairly at her time at Smith, that would definitely be grounds. Since this is so recent, I’m sure this isn’t the only legal opinion on it, but I hope ultimately we can use it for our efforts.

Raven: I think that the new Title IX announcement will show that Smith’s policy is discriminatory, whether that be an immediate policy change or that this policy needs to change.

Private colleges are exempted from Title IX in admissions across the board specifically so that women’s colleges can exist. So concerns that women’s colleges can’t admit trans women because of Title IX, which schools have cited in the past, are unfounded (link goes to a pdf). Tobin says this concern, while perhaps inspired by being overly cautious (at the expense of doing the right thing), has no basis in the law. Since gender’s not a Title IX issue for them when it comes to admissions, Title IX can’t be explicitly used to bring a suit against a women’s college for discriminating against trans women, but it also doesn’t bar their inclusion at all. So there goes that justification for discrimination.

So what can student organizers do to stop their schools from discriminating? And, given that school administrators are at this point primarily blaming federal documents, is there a beneficial role the federal government can play? Tobin says ED can clarify how trans students should fill out the FAFSA, since this can be always is confusing (seriously, it’s not just trans folks who regularly get something wrong on this form, I’m sure, so how is this an issue? I digress). Of course, this wouldn’t address other documents students haven’t been able to change for whatever reason (state law, administrative errors, healthcare needs…). Tobin brought up another suggestion: “One thing that I think would be helpful is to have ED clarify that there’s no way a women’s college can surrender its exemption from Title IX by changing their admissions policies.” Since this seems to be the last excuse/reason schools are falling back on, clarifying that this concern is completely unfounded would take away the supposed barrier to trans women’s admission that Smith is relying on right now. Tobin continued:

I think the best way to have ED clarify that is to have a women’s college ask them, because I think if they got a letter from any of the dozens of women’s colleges asking, “Is this a thing?” they’d write back and say, “No, you can do whatever you want,” and that would be an answer that would be shared widely.

It is something students could ask: “You think that’s an issue, could you ask ED and not just have your college general counsel who’s job is to make up reasons why the college can’t do things.”

This is a practical next step student organizers can take to directly address the tactic used to keep excluding trans women. Given the ongoing clarification that gender identity discrimination is sex discrimination, it seems clear to me that the federal government’s ongoing stance is against anti-trans discrimination, and that any guidance would support inclusion of trans women at women’s colleges and oppose discrimination. Ideally, all school administrators and admissions departments actually want to do the right thing, and would be happy to ask for this guidance, but perhaps it would be easier for students to make this happen from a school that’s already decided to admit trans women.

Of course, if that doesn’t happen and an institution like Smith fails to take this basic step, student organizers can take their concerns directly to ED. In the realm of campus sexual assault activism, we’ve just seen how student organizers who were dealing with uncooperative and unsupportive institutions have succeeded in pushing ED to release guidance. The same approach could be emulated here. Of course, this has publicly embarrassed institutions that tried to sweep their gross mishandling of sexual violence under the rug. So I certainly hope that a school like Smith would want to get clarification, do the right thing, and avoid the PR nightmare of having students get the US government to tell them their policies are discriminatory and not in line with federal guidelines.

It’s worth mentioning that Smith and other women’s colleges’ legacies with feminism are not a reason to assume good intent. Smith is part of a Five College Consortium that has funded and supported the work of Janice Raymond, author of the far-too-influential transmisogynist screed The Transsexual Empire: The Making of the She-Male. Raymond was the Five College Professor of Women’s Studies and Medical Ethics for a period of time shortly before she released a paper that led directly to eliminating state and federal aid for poor trans folks and to trans healthcare exclusions that we are still fighting today (for the record, the paper was officially released while she was an Assistant Professor at UMass Amherst and Hampshire College, my alma mater). Smith, the Five College Consortium, and feminism in the academy more broadly have a responsibility to admit to and address the transmisogynist harm they’ve caused. Admitting trans women, who face extraordinary levels of discrimination and marginalization, would only be a first step – dedicated outreach and scholarship funds for trans women would be great next ones – but it’s a crucial first step that can have a big impact.

I can’t imagine institutions that pride themselves as being feminist hotspots want it to become clear that the federal government cares more about gender identity discrimination than they do, and that’s the reality we’re looking at right now.

Jos Truitt is an Executive Director of Feministing.