Feds Confirm Greeks Exemption from Title IX

Tim Burke, Manley Burke, tburke@manleyburke.com

“Social fraternities and sororities: Title IX does not apply to the membership practices of social fraternities and sororities.¹  Those organizations are therefore permitted, under Title IX, to set their own policies regarding the sex, including gender identity, of their members.  Nothing in Title IX prohibits a fraternity from admitting transgender men or a sorority from admitting transgender women if it so chooses.”

That quote comes directly from the May 13, 2016 Dear Colleague letter issued jointly by the United States Department of Justice Civil Rights Division and the United States Department of Education Office for Civil Rights (OCR).

It is this letter which has generated substantial media attention, which like the North Carolina controversy discussed in the following article focused on bathroom rights, when the issue of the treatment of transgender individuals is actually much broader.

The clear statement in the May 13, 2016 Justice and Education Departments’ letter recognizing the exemption from Title IX of fraternities and sororities should not have come as a surprise.  On December 16, 2014, the Assistant Secretary for Civil Rights in the Education Department wrote in a letter to the coordinator of the Lambda X Project for Fraternities and Sororities that:

“… OCR enforces Title IX, which prohibits discrimination based on sex (including gender identity) in federally funded education programs and activities.  * * *  Title IX specifically excludes the membership practices of a social fraternity or sorority from its coverage, so long as the organization is exempt from taxation under Section 501(a) of the Internal Revenue Code and its active membership consists primarily of students in attendance at institutions of higher education.  [Citation omitted.]  So long as a social fraternity or sorority meets these conditions, its membership practices are exempt from Title IX, regardless of whether that organization admits transgender students.”

While both letters make it clear that Title IX, which prohibits discrimination on the basis of sex in the area of education, does not prohibit fraternities and sororities from maintaining a single-sex membership policy.  The letters also make it clear that a fraternity or sorority which chooses to admit transgender individuals, does not jeopardize its single-sex status or Title IX exemption if it chooses to admit transgender members.

But, while single-sex Greek organizations are clearly exempt from Title IX, that is not an exemption from local and state regulations or college and university rules and policies prohibiting discrimination against transgender students.

1. 20 U.S.C. §1681(a)(6)(A); 34 C.F.R. §106.14(a).