Trans-Cending Space in Women's Only Spaces: Title IX Cannot Be the Basis for Exclusion
Katherine L. Kraschel
affiliation not provided to SSRN
Harvard Journal of Law and Gender, Vol. 35, No. 463, 2012
Despite many women’s college concern for and sensitivity towards the needs of their transgendered communities, there is no women’s college that claims to admit any student identifying as anything other than female, and most do not have a formal policy regarding the continued enrollment of those students who identified as female at the time of admission but identify otherwise while enrolled.
The reason most cited to account for this informal policy of discriminatory admission followed by inclusive enrollment, is due to Title IX of the Education Amendments of 1972. The rationale is as follows: Title IX allows private men’s and women’s colleges to discriminate based on sex, but they may not admit students who are not the sex the particular institution serves; therefore, if a women’s college were to admit a student identifying as male (or not identifying as female) the institution would jeopardize its federal funding because it would violate Title IX.
However, recent cases involving discrimination against gender non-conforming individuals brought under Title VII and Title IX suggest that Title IX protects transgender individuals in the same way it protects women. Moreover, the disturbing amount of evidence showing the terribly high prevalence of bullying and discrimination faced by gender non-conforming individuals in school dictates that something be done to insure transgender people have equal access to an education free of harassment and discrimination. This note argues that Title IX, specifically it’s affirmative action provision, is one tool that can be used to combat discrimination against transgendered individuals by providing for their admission to women’s colleges, and that while women’s colleges may have other, arguably legitimate, reasons for refusing to admit individuals who do not identify female, they should not rely upon Title IX to avoid defending that difficult decision.
Number of Pages in PDF File: 24
Keywords: Transgender, Women's Education, Title IX, Women's College, Gender
Date posted: August 31, 2012