Implementing a Transgender Membership Policy

Stevie Tran

Awareness of the transgender identity is rapidly growing, and just as quickly, colleges and universities, among other institutions, are enacting transgender protections. Fraternal organizations, too, may be considering creating a policy to address the issue of transgender membership.

Legal Foundations

Associational and expressive rights under the First Amendment lay the legal foundation for fraternal organizations, including the right to exclude members on the basis of sex. Title IX of the Education Amendments of 1972¹ expressly preserves these First Amendment rights.² As a result, fraternal organizations are empowered to and should continue to determine who and who does not become a member–including transgender individuals.

Risks of Trans Inclusion

Adoption of a trans-inclusive policy may alienate those in your membership who object to the inclusion of trans members. However, your organization will not be alone. Many others have taken the steps to include trans people and protect them from discrimination, including 738 colleges and universities, 18 states, numerous municipalities, the NCAA, and other fraternal organizations such as Sigma Phi Beta, Gamma Alpha Omega, and most recently, Delta Gamma.

Also, the law is still developing in this area, meaning that not every institution uses the same standards to determine an individual’s sex and gender. These differing standards make it difficult to craft an inclusive policy. Note, however, that despite the differences in legal requirements applicable to trans people, the scientific and medical opinion is well established and recognizes transgender people and the distinct challenges they face in living a healthy, stable life.³

Risks of Trans Exclusion

As discussed above, many colleges and universities are quickly adopting nondiscrimination policies that explicitly prohibit discrimination based on gender identity or expression. If your organization enacts a trans-exclusive policy, a university or college may interpret your policy as a conflict with such nondiscrimination policies. In the wake of Christian Legal Society v. Martinez,⁴ mounting a successful challenge to the enforcement of a university nondiscrimination policy would be arguably difficult. Further, you may face negative reactions from members, universities, media, and national organizations that advocate for transgender rights.

Risks of Doing Nothing

If your organization takes no stance at all, most importantly, you risk diluting the strength of your governing documents and First Amendment rights by creating numerous interpretations of your policies. Chapter members may make membership decisions on your behalf–decisions with which you may disagree. Organizational representatives may make “official” statements and take positions that are uninformed and potentially inflammatory. Successive inter/national staff and board members may also inconsistently interpret your governing documents without proper guidance. In addition, you will likely face mounting pressure from your chapters and from colleges and universities, seeking guidance for an interested transgender potential new member.

A Note on the Concept of Gender Expression

A number of organizations have expressed concern about a transgender individual seeking membership who has a gender expression that, at first glance, contradicts that of the organization’s–for example, a trans woman with a “masculine” gender expression seeking membership in a sorority. First, this is a remote possibility. In light of the challenges and serious risks of living openly as a transgender person, the majority of transgender individuals seeking membership in your organization will have a gender expression that aligns with their gender identity. Second, your organization is already encountering potential new members with a diverse array of gender expressions that may or may not fit within your organization’s gendered expectations–for example, a more femininely expressive man seeking membership in a fraternity. Gender expression is an issue that affects all members–not just transgender individuals–and is not a reason to avoid taking a stance on the issue of transgender membership.

How Should You Proceed?

1) Determine how your policy will be enacted. Will it be an action of your inter/national board? Or will it be passed through your convention? If your governing documents require policy changes to go through your convention, for example, you may consider involving collegiate members in the process.

2) Educate stakeholders on transgender issues. Making a decision on transgender membership requires an understanding of the relevant issues and terminology. An effective policy reflects language⁵ used by the transgender community, making explicitly clear who may and may not become a member. Therefore, education on transgender issues is critical prior to any policy drafting.

3) Determine whether your organization will or will not admit transgender members and at what stages. An effective policy should expressly state, in accordance with your organization’s history and values, how transgender individuals will be treated at each stage of membership: potential new member, collegiate member, and alumnus/alumna.

4) Begin and continue educating your membership and your inter/national office after a policy has been implemented. Once enacted, your policy must be communicated to your membership. Members should be able to explain your policy to potential new members and campus professionals. If your members do not understand your policy or trans issues, your policy will not be effective. Identify educators to train your membership on the reasons for the policy change and the appropriate terminology.

Model Language

Below is language that could be used in crafting a trans-inclusive policy:

1) Potential new member: fe/male: Any individual who self-identifies as fe/male, regardless of her/his assigned sex at birth or her/his expression or the perceived expression of her/his gender.

2) Collegiate and alumnus/alumna: Our organization strives to uphold its gender identity but first and foremost values sister/brotherhood. Therefore, no member can lose her/his membership rights due to a change in gender, gender identity, or gender expression.

Conclusion

At the end of the day, your organization should remember that transgender people can most benefit from participation in a gendered environment as they seek affirmation and support as their true selves. As a result, fraternal organizations–single-sex spaces founded on the values of friendship and sister/brotherhood–may resonate deeply with young trans adults and are uniquely positioned to provide them with that affirmation and support.

Please note: this article is not intended to serve as legal advice. However, as organizations begin the conversation on transgender membership, the authors recognize a pressing need for guidance. If your organization has questions about the legal implications of enacting a trans-inclusive or trans-exclusive membership policy, you should consult legal counsel.

Nathan Arrowsmith is an associate at the Phoenix law firm of Osborn Maledon, PA and is growing his fraternity/sorority law practice. He can be reached at (602) 640-9314 or narrowsmith@omlaw.com.

Stevie Tran is an attorney and consultant who is guiding fraternal organizations through the issue of transgender membership. Her email address is stevie.van.tran@gmail.com.

1 20 U.S.C. § 1681(a)(6) (2006).

2 For a more thorough discussion of Title IX’s relationship with fraternal organizations, see Stevie V. Tran, Note, Embracing Our Values: Title IX, The “Single-Sex Exemption,” and Fraternities’ Inclusion of Transgender Members, 41 Hofstra L. Rev. 503, 523-27 (2012). See also Stevie Tran, Transgender Membership and Title IX, Fraternal Law (Manley Burke, Cincinnati, Ohio), Nov. 2013, at 4.

3 See, e.g., Am. Psychiatric Ass’n, Position Statement on Discrimination Against Transgender and Gender Variant Indviduals 1 (2012), available at http://www.psychiatry.org/File%20Library/Advocacy%20and%20Newsroom/Position%20Statements/ps2012_TransgenderDiscrimination.pdf.

4 130 S. Ct. 2971 (2010).

5 See generally GLAAD Media Reference Guide – Transgender Issues, GLAAD, http://www.glaad.org/reference/transgender (last visited Nov. 16, 2014).