The Trump Department of Education's Investigation of Smith College Qua Women's College is Baseless

On Monday, the federal Department of Education (DOE) launched a Title IX investigation into Smith College for its practice of admitting transgender women and according them the same respect as other students. Smith is, famously, a women's college, having produced such notable alums as Sylvia Plath, Gloria Steinem, and Julia Child. (Full disclosure: my younger daughter is currently a senior at Smith, scheduled to receive her degree in just over a week.) The DOE press release says that the government is investigating Smith "for admitting biological men and granting them access to women-only spaces, including dormitories, bathrooms, locker rooms, and athletic teams." It includes the following statement by Assistant Secretary for Civil Rights Kimberly Richey: "An all-women’s college loses all meaning if it is admitting biological males . . . ." The term "biological males" is Trump-administration-speak for "trans women."

But here's the thing. Even if one accepts the Trump administration's transphobic view that sex means sex assigned at birth, it's not unlawful for a private college to admit only cisgender women and some relatively small number of "biological males." That's because Title IX doesn't provide a bespoke exception from the sex discrimination prohibition for admission to women's colleges. Rather, Title IX simply does not apply to admissions to private undergraduate colleges. Don't believe me? Here's the statutory text:

20 U.S.C. § 1681 - Sex

(a) Prohibition against discrimination; exceptions

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance, except that:

(1) Classes of educational institutions subject to prohibition

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;

You see? Admissions to Smith, as a private institution of undergraduate education, are not covered by Title IX. When the DOE says it is investigating Smith for "admitting biological males," it is broadcasting the fact that it is investigating conduct by Smith that cannot possibly be unlawful.

That same press release goes on to quote Ms. Richey as follows: "Allowing biological males into spaces designed for women raises serious concerns about privacy, fairness, and compliance under federal law. The Trump Administration will continue to uphold the law and fight to restore common sense."

So, in addition to its completely unauthorized investigation into Smith admissions, the Trump DOE is complaining that "males" are permitted in "women-only spaces, including dormitories, bathrooms, locker rooms, and athletic teams." That strikes me as a dubious theory on the facts as applied to Smith. I can report from personal experience that everybody, including men like yours truly, is permitted in the dormitory buildings (and individual student rooms by invitation) and the dormitory  restrooms, which are coed (though there are private stalls and showers). Perhaps there are privacy issues with respect to locker rooms but they could surely be addressed cheaply through stalls and curtains, although I'm dubious they rise to the level of Title IX violations in the first place.

As for fairness, this is supposed to invoke competition for sports teams, but for its intercollegiate athletics, Smith is subject to the rules set by the NCAA, which (under pressure from the Trump administration) doesn't allow trans female athletes to compete. I would be surprised to learn that there are cisgender female athletes in club sports or intramural sports who feel unfairly deprived of athletic opportunities because of the presence of a few recreational trans athletes.

Meanwhile, it's notable that in Bostock v. Clayton County, the Supreme Court, in an opinion authored by Justice Gorsuch and joined by Chief Justice Roberts, held that discrimination based on transgender status is unlawful sex discrimination pursuant to Title VII. It's possible that there are reasons to distinguish Title VII from Title IX, but the Trump administration's view is completely upside down: It has been bullying colleges and universities to adopt its position that statutory language that in Title VII forbids transgender status discrimination requires such discrimination under Title IX. That bullying has been quite successful so far, most prominently with the capitulation by the University of Pennsylvania. But the success of the bullying does not show that the Trump administration's extremely tendentious view of Title IX is correct any more than the fact that shop owners pay protection money to mafioso shows the latter's demands are lawful.

In any event, even if we indulge the Trump administration's extravagant view that concerns about privacy and fairness mean that failure to discriminate against transgender females is itself sex discrimination under Title IX, that has nothing to do with Smith's status as a women's college. Unless the government has some reason to believe that cisgender female students at Smith are being subject to especially severe intrusions into their privacy or special unfairness in club or intramural athletics, there is no more reason to subject Smith to this particular anti-trans crusade than there is to target any other single-sex or co-ed college in America.

So why did the administration target Smith College in particular? I can't say for sure. Ms. Richey appears to be a general-purpose anti-trans zealot, but her public profile doesn't reveal any prior connection to Smith. If I had to speculate, I'd say that Smith was targeted not because the presence of trans students makes its cis students uncomfortable in any way but precisely for the opposite reason--that Smith and Northampton, Massachusetts present an especially welcoming environment for LGBTQ+ persons. Just as the administration targeted Penn, Harvard, Columbia, and other Ivy League universities to make the point that it could bloody the noses of even the best-resourced universities in the country, so it targets Smith to make the point that it can foist its transphobic policies on even one of the most trans-welcoming colleges. For the Trump regime, arbitrary bullying is a feature, not a bug.

-- Michael C. Dorf