The Title IX Investigation into Smith College Is An Opportunity

To finally engage in the discussion we never had

Photo by Zoshua Colah on Unsplash

This week, the Trump administration’s Education Department announced an investigation into Smith College, one of the storied Seven Sisters. Like its six siblings, Smith adopted a policy of admitting trans women and girls over the last decade, but the DOE argues that such a policy violates Title IX, the 1972 law prohibiting sex discrimination in educational settings that accept federal dollars.

How did such policies come about in the first place?

In 2009, Obama’s Secretary of Education Arne Duncan met with a delegation from what was then called the Gay, Lesbian and Straight Education Network, or GLSEN. The topic: reducing the bullying of lesbian, gay, bisexual, and transgender students. GLSEN’s National School Climate Survey that year reported hostile school environments, which ranged from kids using “gay” as an insult to the assault of students based on their sexual orientation or “gender expression.”

That is: those who didn’t conform to sex-based expectations were more likely to be beaten or taunted. School personnel weren’t doing much to intervene, despite GLSEN’s decade-long chronicling of the need for them to.

Duncan offered a chance for some educational climate change. On October 26, 2010, he issued a “Dear Colleague” letter—a non-binding but strongly urged public policy suggestion—that insisted Title IX prohibited “gender-based harassment,” or discrimination based on “the actual or perceived sexual orientation or gender identity of the harasser or target.”

Gender identity-based harassment was now a form of sex discrimination, and schools that didn’t protect kids against it could lose federal funding. While The New York Times describes policies that arose from the recasting of Title IX as a way to “welcome transgender students,” in fact, they were forced to—if they wanted to maintain their budgets.

Still, for some students, that change felt like a triumph of inclusivity, especially for those with the deep sense that they are, or should have been, the opposite sex—or some other category in between. Many trans girls wouldn’t feel safe in a boys’ locker room. Most Gen Z and late Millennials have been raised to believe that their personal gender identity matters more than their objective sex category, so any pushback feels like bigotry or discrimination. Some are too young to remember the very recent past in which gender identity not only was absent from laws or policies, but wasn’t even on the minds of the vast majority of Americans, most of whom had never heard of transgender children. They’re too young to understand why Title IX was passed in the first place: to combat rampant discrimination against women in education.

But what may seem like a minor semantic shift actually paved the way for one of the most divisive cultural issues of our time. Instilling gender identity as a protected characteristic affected far more than the tiny population it was meant to shield; it affected all women. It ultimately meant that girls’ and women’s sports teams had to include males based entirely on their self-conception—because no matter how we alter appearances or bodies, sex itself doesn’t change. It meant that males could and did use women’s locker rooms and bathrooms. Any spaces or groups once segregated by sex were compelled to divide by identity, and that meant females changing in front of males, or competing against them, and having no legal recourse to challenge the rules—and no social space to do so, either, without being accused of unkindness or bigotry.

Gender identity wasn’t a facet of sex; it was a replacement for it.

The rewording of Title IX didn’t come through democratic channels, decided by voters or their elected representatives. There was no concerted effort to educate the public about the cultural and legal implications of what, to the untrained ear, seemed like a few altered syllables. So while the Trump administration’s investigation feels to some like yet another blow to human dignity by the hard-hearted Trump team, hell-bent on stripping away these recently-won civil rights, it’s also true that the investigation provides us with an opportunity to better understand those impacts and craft a policy that protects the privacy and dignity of natal girls and women, and trans girls and women.

This issue is an albatross around the neck of the Democratic Party, whose “moderate” candidates still can’t summon simple responses to questions like “What is a woman?” or “Should a male compete against a female in sports?” without sputtering. The vast majority of Americans don’t believe sports should be divided by gender identity; that is, they support the original wording and intention of Title IX. Liberals like me believe that people should be free to live their best lives, and not be discriminated against in housing or employment—but that one individual’s rights should not overpower the rights of all others, and that women’s rights matter, too. The issue may read as niche, but it’s actually deeply important to many people, who want to know that their elected officials are straight-shooters.

It’s okay for the government to launch Title IX investigations. Indeed, when tweaks to the law, born out of anti-bullying work, led to many girls and women feeling bullied, we must. The important thing is that we engage with whatever such investigations uncover, and finally have the conversation about the conflict between sex and gender identity.