INTRODUCTION
Fraternity or sorority is a sisterhood or brotherhood formed around common aspirations and goals (Ball State University, 2020). The men and women in this groups make a lifelong commitment to each other. They share their knowledge, friendship and efforts. The Fraternity is limited to male members, whereas the sorority is limited to female members. Title IX of the Education Amendments of 1972 prohibits sex discrimination in any education activity or program receiving financial assistance. Moreover, Title IX’s language does not say anything concerning social fraternal organizations and their single-sex status. Title IX does not impose any requirement on social sorority organizations to remain single-sex in order for them to benefit under the Title IX amendment. The Title allows universities to recognize single-sex sororities and fraternities without violating the law. Sororities and Fraternities are free to determine their membership and have the right to associate. This paper seeks to demystify the current law on fraternities and sororities and to defend their legal right to discriminate against opposite sex members specifically transgender members.
LEGAL FRAMEWORK
The U.S Constitution doesn’t generally regulate the conduct of private organizations. It guarantees to the right to intimate association and the right to expressive association (20 U.S.C. §§ 1681-1688 (2006)). In addition, the Supreme Court is Boys Scouts of America v. Dale held that a private organization is free to exclude a person from membership if it believes that the presence of such a person affects the group’s ability to advocate private and public viewpoints. In this case, the Boy Scouts of America excluded a homosexual person from joining their group in spite of an existing law encouraging equal treatment of all people. Similarly in NAACP v. Patterson, the court held that the respondent has the freedom to engage in an association for the advancement of his beliefs and ideas and such freedom is protected under the 14th Amendment of the U.S Constitution. In this case, the state failed to show a justification for deterring the free enjoyment of the right of association. In the NAACP case, the respondent formed a non-profit membership corporation for the purpose of catering for the welfare of the Negroes. Additionally in Roberts v. United States Jaycees, the court held that the right to associate for expressive purposes is not absolute. The right of association may be infringed it can be justified by regulations adopted to serve state interest, not related to ideas suppression and that cannot be achieved by less restrictive associational freedoms means.
OPINION
Fraternities and sororities should not be obligated to allow transgender members as that is against their beliefs. When you date back their history to 1776, they were formed for same-sex members to strength sisterhood and brotherhood values. As held in Boys Scouts of America v. Dale, they should be allowed to exclude members whose presence affects the group’s ability to advocate for private and public viewpoints.
In addition, Title IX’s language does not state anything about single sex status and fraternities and it does not require fraternities to remain single-sex in order to benefit pursuant to Title IX’s exemption. It states that for universities to benefit from federal funding, they have to recognize social fraternities that possess an active memberships of students in attendance at a higher education institution (Tran, 2012). Title IX does not exceed that provision and it does not expressly impose liability on universities that have such fraternities. Therefore, Title IX impliedly allows the sororities and fraternities to remain single-sex. In defense of the fraternities and sororities, they should retain the legal right to discriminate against opposite sex members especially transgender members because Title IX does not obligate them to admit opposite sex members.
Further in Boston v. Clayton County, whereby an employer terminated an employee for “unbecoming” conduct after participating in a gay recreational softball league. The employee sued alleging sex discrimination pursuant to Title VII of the Civil Rights Act of 1964. The Court held that an employer violates Title VII when he/she intentionally fires an employee on the ground of sex. Further, the court while relying on Phillips v Martin Marrieta held that when a company formulates policy to counteract discrimination based on sex, it is itself promoting discrimination. Based on this holding, the fraternities and sororities should be allowed to enforce their legal right to discriminate against opposite sex members especially transgender members because if they come up with policy that it against discrimination based on sex, such conduct can be held to be actual discrimination.
In addition, the U.S Department of Education in response to a letter by Catherine Lhamon stated that so long as the fraternal organization meet Title IX express requirements, they will be allowed to continue being in effect regardless of whether they admit transgender students or not. The U.S Department of Education position conforms to the current construction and interpretation of Title IX.
The position of the U.S. Department of Education confirms the current interpretation of Title IX and its role on the membership practices of social fraternal organizations, in that Title IX has no role. Further, the U.S. Department of Education agrees that students organizations such as sororities and fraternities should be allowed to exercise the right to associate and form groups according to their preferences.
CONCLUSION
In conclusion, fraternities should be allowed to continue limiting their membership to people of the same-sex as private organizations are allowed to have the freedom of association and Title IX of the Education Amendments does not expressly state that fraternities and sororities should allow members of the opposite sex in particular the transgender members.
REFERENCE LIST
Bostock v Clayton County, No 17-1618, 723 Fed. Appx. 964
Boy Scouts of America et al. v. Dale, 530 U.S. 640 (2000)
Campus Pride, 2015 Trans Membership & Title IX: U.S. Dept. of Education clarification paves way for Trans-inclusive Fraternity & Sorority Membership Policies.
E-mail from David L. Westol, J.D., Owner & CEO, Limberlost Consulting, Inc., to author (Nov. 5, 2011, 7:29 EST) (on file with Hofstra Law Review) [hereinafter Westol E-mail]
NAACP v. Patterson, 357 U.S. 449 (1958)
Phillips v. Martin Marrieta 400 U.S 542
The United States Constitution
Title VII Civil Rights Act of 1964
Title IX of the Education Amendments of 1972
Van S. (2012). Embracing Out Values: Title IX, the “Single-Sex Exemption,” and Fraternities’ Inclusion of Transgender Members, Hofstra Law Review: Vol 41: Iss 2, Article 8 accessed on December 11, 2020 on http://scholarlycommons.law.hofstra.edu/hlr?utm_source=scholarlycommons.law.hofstra.edu%2Fhlr%2Fvol41%2Fiss2%2F8&utm_medium=PDF&utm_campaign=PDFCoverPages
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