The investigation rests on a legally dubious interpretation of Title IX and marks the latest attempt by the Trump administration to use federal power to target trans people, women’s rights and liberal arts institutions alike.
The Trump administration has been waging war against women’s rights, trans rights and higher education, especially liberal arts education. These wars have converged in the administration’s latest attack against transgender rights at a liberal arts college for women.
On May 4, the U.S. Department of Education (DOE) announced an investigation into Smith College, one of the nation’s leading women’s colleges, for admitting transgender women, whom DOE calls “biological men,” and “granting them access to women-only spaces, including dormitories, bathrooms, locker rooms and athletic teams.” DOE suggests Smith College may have violated Title IX, which prohibits sex discrimination in education, by “allowing biological males into women’s intimate spaces.”
In a press release, DOE dresses up its investigation of Smith College as a defense of women, but this investigation is in fact an attack on the rights of women at Smith to determine their own values and mission, and to set their own policies without interference from the federal government.
The legal basis for this investigation appears to be premised on a fundamental misreading of Title IX by the Department of Education.
Referring to Smith as an “all-girls college,” the DOE press release says:
“Title IX contains a single-sex exception that allows colleges to enroll all-male or all-female student bodies—but the exception applies on the basis of biological sex difference, not subjective gender identity. An all-girls college that enrolls male students professing a female identity would cease to qualify as single sex under Title IX.”
That is not how the law is written. The reason Smith College and other private women’s colleges are able to operate as women’s colleges is not because of a “single-sex exception.” It is because Title IX doesn’t apply to admissions at private colleges at all, full stop.
Title IX says:
“20 USC 1681(a)(1):
(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.”
(emphasis added)
The prohibition on sex discrimination in admissions applies to public colleges, but not private colleges. It has nothing to do with whether a college is all male, all female, or 70 percent one and 30 percent the other. If it’s private, Title IX doesn’t apply to admissions.
Title IX does have a provision regarding single-sex institutions—Section 5—but this provision applies to public, not private institutions, and even grandfathers in certain single-sex public colleges.
“(5) Public educational institutions with traditional and continuing admissions policy in regard to admissions this section shall not apply to any public institution of undergraduate higher education which is an institution that traditionally and continually from its establishment has had a policy of admitting only students of one sex.”
The DOE compounds its misreading of Title IX’s requirements regarding admissions at private colleges, with the claim that Smith discriminates against cisgender women by allowing transgender women equal access to “women’s” dorms, bathrooms and locker rooms.
… The DOE press release is embarrassingly wrong on the law, is bankrupt of any factual basis, and is a bad-faith attempt to bully a women’s college, pure and simple.
Aside from admissions, Title IX does apply to the rest of the college experience at private colleges. As for how Smith College treats students after they’re admitted, DOE isn’t complaining that Smith College discriminates against women or against what it considers to be men. DOE is complaining, instead, that the college treats them the same.
But Title IX prohibits discrimination, not non-discrimination.
This particular complaint is legally nonsensical, regardless of what position one has on transgender rights.
In fact, Title IX allows, but does not require, colleges to have separate living facilities for men and women.
“20 USC 1686. Interpretation with respect to living facilities
Notwithstanding anything to the contrary contained in this chapter, nothing contained herein shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes.”
(emphasis added)
Similarly, Title IX’s implementing regulations allow, but do not require, separate intimate spaces:
“34 CRR § 106.33 Comparable facilities.
A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.”
(emphasis added)
Congress and the Department of Education surely know the difference between “may” and “must.” Separate intimate facilities are provided by colleges because students prefer it, not because the law requires it.
Regardless of whether Title IX on its face requires separate facilities, could a failure to provide them as a practical matter violate Title IX? If by making students uncomfortable, could a lack of separate facilities have the effect of excluding students from participating in or receiving the benefits of the educational program on the basis of sex?
In theory, perhaps.
But in fact, there is no public record of any Smith College student ever complaining that Smith’s policies made them uncomfortable or denied them full participation in any program. DOE’s “investigation” did not stem from a complaint by a student. It stemmed from a complaint by a conservative advocacy group. Notably, in their press release, DOE does not claim a single Smith student has ever complained about, or had their ability to participate fully in the Smith College experience negatively impacted by, Smith College’s dorms, bathrooms or locker rooms.
And that’s hardly surprising. Smith College has single-stall bathrooms across the campus. In dorms, bathroom stalls have doors, and showers and changing areas have curtains. The gym has an all-gender locker room with private showering and changing areas. If any Smith College student ever expressed privacy concerns, the college would undoubtedly accommodate them.
Finally, the press release mentions sports. NCAA has already barred transgender women from competing in women’s college sports. DOE does not claim a single Smith College student has complained that they were deprived of the benefits of the educational program by Smith College’s policy on sports participation.
In short, the DOE press release is embarrassingly wrong on the law, is bankrupt of any factual basis, and is a bad-faith attempt to bully a women’s college, pure and simple.
The Trump administration claims to be “defending women,” but it was cisgender women students themselves who demanded that Smith College open admissions to transgender women over a decade ago, continuing a longstanding tradition of Smithies pushing the boundaries of gender.
Instead of supporting women, the DOE investigation is attacking them by attempting to wrest away control of the college from the women who run it and impose the Trump administration’s own backward-looking ideological agenda on the college. This agenda fundamentally contradicts Smith’s central values, including a dedication to learning and critical thought, as well as a commitment to recruiting talented, ambitious women of all backgrounds.
Congress passed Title IX in 1972 to expand women’s rights in education. The Trump administration, notorious for aggressively rolling back women’s rights, is now weaponizing this landmark civil rights law to attack women’s education—an abuse of power fundamentally at odds with the purpose of Title IX.
