Defending Fraternities and Sororities: Legal Right to discriminate against transgender members
OVERVIEW
Transgender persons are those persons who do not identify with gender based on their birth sex. For ages, they have encountered discrimination in most of their facets in life like in employment, parenting and marriage among others. Despite the US trying to in cooperate them under the protected class of persons, those legislations have since been unsuccessful. The attempt to explain the unfruitfulness of protecting the transgender persons have been explained by a number of legal scholars (Lloyd, 2005). The discrimination of the transgender persons is often distinguished from discrimination of persons due to their sexual orientation. This is because transgender people identify with the gender that they were not born into therefore making it a complex area of law. Many states however have tried to protect the transgender persons under anti-discrimination laws. The state of Massachusetts, New York and New Jersey were some of the examples of state that interpreted their discrimination laws to include transgender persons. The case of Enriquez v. West Jersey Health System classified the transgender persons under disability. The court identified gender dysphoria as disability under L.A.D law. The court further stated that this kind of disability is not caused by physical defects but rather mental or developmental disability resulting from anatomical, psychological or neurological condition (Trotter, 2010).
Higher learning institutions and transgender persons
As earlier mentioned, transgender persons are gaining recognition by day making it possible for them to engage in activities that other people engage in especially when it comes to collages. A number of collages have adopted the inclusivity measures to accommodate transgender persons. However, fraternities together with other institutions such as collegiate athletics made it difficult for transgender students to access them. Nevertheless, in August 2011, the National Collegiate Athletic Association (NCAA) enacted a policy that made it possible for transgender students to participate in sporting activities according to the gender they identify with (Tran, 2012). This was seen as a positive step by the transgender persons. However, fraternities did not join in championing for the rights of the transgender persons in their institutions. This begs the legal question if the law regulates the conduct of private organization like fraternities.
Legal standing
The constitution does not regulate the conduct of private organizations as it does in regards to public organizations. Title IX specifically requires higher education institutions to have non-discriminatory policies that accommodate all persons including transgender persons. The targeted institutions are those that receive Federal financial assistance. However, there is an exception in regards to fraternities, religious organization and sororities to the extent of their codes.
In 1958, a landmark case of NAACP V Alabama recognized the freedom of association as a right which is protected by the First Amendment. Logic dictates that, since the freedom of expression is a right o does the freedom of association so that one can interact with those who they hare ideologies. Of importance I to note that the first amendment does not, in its entirety, list freedom of association as an absolute right. This position has been supported by a 2000 case of Boy Scout v Dale where the Supreme Court echoed on the freedom of association in the negative. In this case, the court stated that the Boy Scouts of America had the right to choose who to associate with. This was after the membership of an assistant scout master was revoked by the organization. The revocation was due to the revelation of the assistant that he was a homosexual man.
Another significant case that tackles discrimination was the case of Roberts V Jaycees. The question presented before the court was as to whether Jaycees’ right to free association under the first amendment was violated by Minnesota’s attempt to enforce anti- discrimination law. The court unanimously concluded in its decision that Jaycees chapters lacked distinctive characteristics that might afford constitutional protection to the decision of it members to exclude women.
Brief discussion
All these cases show that there is no consistency when it comes to the conclusion of cases that involve freedoms such as freedom of association and membership. The only consistency that can be drawn from those cases is that a private organization has the right to choose their members and in the event of exclusion, there must be a reason that is reasonable enough to deny inclusivity. For instance, if the doctrine of a certain religion does not correspond with homosexual people, the religion will not be said to be in contravention with the law because there are rights that are also conferred to religions and they should be respected and protected. The same applies to transgender persons and private organizations. Transgender topic is one that is seen as controversial and most people do not understand the science behind that. There have been cases where some people are not confortable because of the confusion in regards to gender therefore making some individual to feel threatened by them.
Recent case law on transgender rights and its effects
The most recent case concluded in 2020 is the case of Bostock V Clayton County and Zarda V Altitude Express. The question presented before the court in the former case was as to whether Title VII of the Civil Rights Act of 1964 prohibiting employment discrimination encompasses sexual orientation. The court not only stated that it is a violation of Title VII of the Civil Rights Act of 1964 discriminating an employee on grounds of sexual orientation but also added that transgender persons are protected by the same law. The court overlooked the legislative history and justified that move by stating that the language in the statute unambiguously prohibits the discriminatory practice.
CONCLUSION
Through the Botock case, SCOTUS opinion has forced Harvard to withdraw its policy against fraternities, sororities and other single-gender organizations believing it could be seen as legally discriminatory against single sex organizations.
In my opinion, the university has no ability to enforce discrimination compliance under Title IX because Title IX specifically exempts the university from the discriminatory actions of single sex organizations.
The university cannot enforce its own non-discriminatory polices on single-sex organization because the Bostock opinion seem to make it clear that non-discriminatory policies are discriminatory.
Since it’s a private organization, the Constitution seems to support freedom of association so there doesn’t seem to be any constitutional arguments in its interpretation and implementation.
References
Lloyd A. W., (2005), ‘Defining the Humans: Are Transgender People Strangers to the Law?’ Berkeley Journal of Gender, Law & Justice
Tran S. V., (2012), ‘Embracing Out Values: Title IX, the “Single- Sex Exemption,” and Fraternities’ Inclusion of Transgender Members.’ Hofstra Law Review, Vol. 41
Trotter R., (2010), ‘Transgender Discrimination and the Law: Contemporary Issues in Education Research.’ University of Baltimore, Vol 3 No 2
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