This past summer, the National Panhellenic Conference (NPC), an umbrella organization for national and international sororities of college and university women and alumnae, released the report of its Gender Identity Study Group. The Group had been convened in November 2016 to gather and disseminate relevant information for its member organizations on the pressing issues involving inclusion of transgender individuals in traditionally single-sex social organizations. The charge to the Study Group was to refrain from dictating policy, but to simply examine the legal issues, including Title IX issues, campus issues, and potential consequences that member organizations should consider relevant to admission of transgender individuals as sorority and fraternity members.
The NPC, founded in 1902, is one of the largest women’s advocacy groups in the country. NPC sororities are located on more than 670 campuses with over 410,000 current undergraduate members in 3,288 chapters. NPC and its member sororities are involved in philanthropy, service, research and, most importantly, sisterhood and support.
Deans of students, campus safety officials, campus housing directors, sorority presidents, executives of NPC, and attorneys from higher education made up the fourteen-member Study Group. The group formed three working groups to investigate three separate areas: (1) existing policies of member organizations and questions their leadership teams had, (2) legal questions related to gender identity issues in single-sex sororities and fraternities, and (3) “best practices” and resources for member organizations to access. Working groups met separately to discuss their individual issues, and as a committee of the whole.
Working Group 1 found general support for policies of inclusion among the NPC member organizations. Questions arose about the potential status of transgender individuals who may revert to their birth sex after being admitted to membership in a sorority or fraternity, as well as the status of members admitted on the basis of birth sex who then, after being admitted, change their gender identity or change their gender identity as alumnae. Questions also arose about housing accommodations from organizations that provided housing for their members.
Working Group 2 found that member organizations were anxious for resources to help educate their members and staffs about gender identity. However, the Working Group found that language, terminology, and definitions differ among available resources, and reminded the leadership teams of their member organizations to use identified resources carefully.
Working Group 3 may have had the most elusive task because the legal landscape regarding gender identity and Title IX has been changing rapidly. Title IX prohibits educational institutions receiving federal funds from discriminating on the basis of sex. Title IX’s implementing Regulations make clear that Title IX does not necessarily apply to single-sex social organizations like sororities and fraternities. However, if Title IX prohibits colleges and universities from discriminating on the basis of gender identity, college policies may impact sorority and fraternity policies. State human relations laws pertaining to public accommodations may also be relevant. In addition, the First Amendment guarantees of freedom of association may not apply in all cases, especially when organizations refuse to admit members solely on the basis of sex.
First Question: Gender Identity
The first relevant question is whether discrimination on the basis of gender identity is discrimination on the basis of sex.
The Office for Civil Rights (OCR) since 2011 has consistently promulgated what are termed “significant guidance documents” stressing that discrimination based on either gender orientation or gender identity is prohibited under Title IX. OCR’s Assistant Secretary Catherine Lhamon has repeatedly threatened withdrawal of Title IX funds from any educational institution that does not comply. On May 13, 2016 the Department of Justice (DOJ) and OCR issued a Joint Dear Colleague Letter (DCL) on Transgender Students, strongly affirming the earlier OCR guidance. But the Trump administration on February 22, 2017 rescinded the DOJ/OCR DCL. The Supreme Court had previously granted certiorari to consider the issue of protections for transgender individuals, but after the administration’s actions, removed the issue from its 2016-2017 docket.
Complicating the situation further, the Seventh Circuit in Spring 2017 ruled in two different cases that (1) gender orientation is protected under Title VII, a federal anti-discrimination law applicable in the workplace, and then, that (2) gender identity is protected under Title IX, relating to educational institutions. These two decisions, Hively v. Ivy Tech Community College and Whitaker v. Kenosha Unified School District, respectively, intensified the split about the issues among the various Circuit Courts of Appeals. The issues may still reach the Supreme Court.
Second Question: Freedom To Associate
In addition to the confusion about whether gender identity is a protected category under Title IX, the First Amendment protects freedom of association, as well as the freedom not to associate, but not in all cases. The most relevant Supreme Court decisions that apply to sex discrimination in single-sex sororities and fraternities are a pair of decisions from the 1980s: Roberts v. United States Jaycees (1984) and Board of Directors of Rotary International v. Rotary of Duarte (1987). The Jaycees case centered on a dispute between the national organization, which allowed for associate memberships for women, but with fewer privileges than those afforded to men, and several local Minnesota affiliates which opened membership to women without any restrictions.
The national group threatened to revoke the charters of the Minnesota affiliates. The High Court looked at several factors to determine whether the Jaycees were justified in limiting regular memberships to men only. The Court looked at factors like size of the organization, purpose, policies, selectivity, and “congeniality.” The nature of the relationship among the members was critical, specifically those involving deep attachment and commitment, and a special community of thoughts, experiences, and beliefs. Local Jaycees clubs could be quite large, with few criteria for membership except sex and age. Their central activities were open to the public. The Court decided that the Jaycees affiliates lacked the distinctive characteristics that would have entitled them to exclude women from full membership.
In the Rotary International case, the High Court looked to the Jaycees decision and to the factors that were critical to that decision. In addition, the Court found that the all-male Rotary clubs were often used for business purposes or by non-members. The relationship among Rotary members, stated the Court, is not the kind of intimate or private association that warrants Constitutional protection. The Court ruled that Rotary could not exclude women as members.
The NPC Report lays out issues to consider when sororities, and by analogy, fraternities, consider admitting transgender individuals as members. If they do decide to admit transgender individuals, their membership policies should avoid creating unequal privileges based on gender or gender identity. The report also reminds these organizations that their organizational purposes, selectivity of membership requirements, and sense of common ideals and community matter. Future case law, state human relations laws, and policies of their educational institutions may also matter.
Dr. Conn served on NPC’s Working Group 3. The full report can be found at https://www.npcwomen.org/about/official-documents.aspx.
This Collegiate Comment is a publication of the KingSpry Higher Education Law Division. It is meant to be informational and does not constitute legal advice.