Non-binary Gender in a Binary System

Sean Callan, Manley Burke, sean.callan@manleyburke.com

Leaders of Greek letter organizations continue to grapple with the question of what it means to be a single-sex organization.  Specifically, what does “single-sex” mean in a world in which people identify and express themselves in multiple ways, many of which do not fit neatly into any historical notion of “male” or “female”.

The good news is that the law establishes no prohibitions as to how social clubs define “male” or “female”.  The bad news is that the law provides little guidance as to a correct definition.  In short, Congress and the courts have largely punted the question of what it means to be “male” or “female”.

Many Greek letter organizations have addressed this vacuum by adopting inclusive policies regarding eligibility for membership.  Delta Gamma, for instance, adopted an inclusive policy stating, in part, that “[m]embership is open to women and transgender persons who identify themselves as women.”

Men’s groups have likewise moved toward inclusiveness.  As an example, Lambda Chi Alpha adopted a policy stating that “a college ‘man,’ for purposes of our laws, is any individual who, at the time both of his association and his initiation, self-identifies as male, regardless of his assigned sex at birth or his expression or the perceived expression of his gender.”

There is nothing in the law that would prevent any organization from adopting its own definition of “male” or “female” for purposes of establishing a single sex organization.  Accordingly, Greek letter organizations are turning to practical realities to guide their decisions.

Perhaps the most important practical consideration is that anecdotal evidence indicates that a large swath of college students served by Greek organizations desire inclusivity.  While this is certainly not a unanimous view, it is apparent that students wish to make their own determinations as to the quality of candidates for membership without being tethered to strict rules that may make no sense in their campus environment.

As important as the student influence is the influence of the host institutions.  More and more frequently, host institutions are asking for non-discrimination statements regarding transgender membership.  In fact, extension applications that fail to include such an inclusive policy are often denied.

Given that there is no legal barrier to inclusivity, combined with the reality that constituent students and host institutions desire inclusivity, many Greek letter organizations have broadened their definition of “male” and “female” to include transgender students.

This discussion leads to the next – how to address non-binary students within a single-sex system.  It is a difficult question because generally speaking non-binary gender is used with reference to any gender identity that does not fit into the gender binary of male and female. Non-binary gender people may, for example, identify as having no gender, fall on a gender spectrum somewhere between male and female, or identify as totally outside binary gender identities.  Indeed, some non-binary people are gender fluid meaning that their gender identity may fluctuate between male and female.

Like consideration of transgender membership, there is nothing in the law that precludes non-binary membership in a single-sex organization.  Unlike consideration of transgender membership, there is no guidance on this point.  There is no Dear Colleague letter (revoked or not) and no guidance from DOE similar to the Case letter.¹  In short, leaders of Greek letter organizations are again on their own.

Given the complete lack of guidance, Greek letter organizations are free (legally) to determine their own definition of “male” and “female”, and may decide for themselves whether non-binary gender fit within their definition.  Some women’s colleges have decided that admitting non-binary students is consistent with their mission as a women’s college.  (See, e.g., Wellesley College admittance policy, “The College also accepts applications from those who were assigned female at birth, identify as non-binary, and who feel they belong in our community of women.”)  Likewise, Delta Phi Epsilon has adopted a non-binary inclusive policy.  (“Identities that may be considered for membership include non-binary, gender nonconforming individuals who are committed to the advancement of womanhood.”)

As it stands today, there is no legal prohibition to single-sex organizations making a decision to admit non-binary students or members.  Indeed, Dr. Matthew Shaw recently noted that a proper definition of “female” could be “anyone who does not identify as male”.  There is simply no law or guidance on this point.

As colleges and Greek letter organizations struggle with how to define their own organizations, it is likely that different organizations will reach different conclusions.  A question remains as to the impact of each group’s individual decision on the larger associations of which they are a part.

For instance, the National Panhellenic Conference has affirmed that “NPC member groups exist as women’s-only private social organizations.”  Likewise, Delta Phi Epsilon International Sorority views itself as a women’s organization.  But what each group means by the term “women” may be different.

Simple terms such as “man” and “woman” or “male” and “female” were easily understandable in a binary system.  As constituent student groups, and host institutions, push toward a non-binary system, the meaning of these “simple” terms is now uncertain.  If a group desires clarity as to what it means to be “male” or what it means to be “female”, it now must define the term.

Will DPhiE’s decision impact its association with other members of NPC?  Maybe.  That question has yet to be answered.  What is apparent is that the discussion about gender in a binary system is far from over.

1 On December 16, 2014 the Department of Education issued a letter to Douglas Case regarding transgender membership in a fraternity.  This guidance, which has not been withdrawn by the Trump administration, reads in pertinent part as follows:

As your letter points out, 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. 20 U.S.C. § 1681(a)(6)(A); 34 C.F.R. § 106.14(a). 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.

DOE Letter to Douglas Case, December 16, 2014.  (Emphasis added).