DOE Challenges Title IX Single-Sex Exemption as Supreme Court Prepares to Rule
By Jeff Bayard | Constitutional Showdown Series | May 8, 2026
“So God created man in his own image, in the image of God he created him; male and female he created them.” (Genesis 1:27)
From the beginning, God established two sexes—male and female. Not as social constructs or subjective identities, but as biological reality reflecting His creative design. The body reveals who we are; we don’t tell the body who we are.
On May 4, 2026, the U.S. Department of Education’s Office for Civil Rights opened an investigation into Smith College, “one of the nation’s largest all-women’s colleges,” “for admitting biological men and granting them access to women-only spaces, including dormitories, bathrooms, locker rooms, and athletic teams.” According to the Department’s news release, OCR “will determine whether the college violated Title IX of the Education Amendments of 1972 … by allowing biological males into women’s intimate spaces.”
This isn’t just about one Massachusetts college. It’s about whether legal categories in federal law can be redefined without Congressional action—and whether objective biological reality or subjective self-identification governs American law. The Supreme Court will rule on this exact question by June 2026.
The stakes: every school receiving federal funds, every athletic scholarship, every housing policy, every privacy protection that depends on sex-based classifications.
Why This Matters to Every American
Title IX governs every educational institution receiving federal funds—which means virtually every school in America. When Congress wrote “sex” into Title IX in 1972, they established legal protections based on that category. Single-sex colleges could exist. Women’s sports teams could exist. Sex-segregated bathrooms and locker rooms could exist.
All of these depend on one question: What does “sex” mean?
If “sex” means biological reality (male/female), these categories function. Female athletes compete against females. Women’s colleges serve women. Privacy protections protect women from males.
If “sex” means subjective self-identification, the category collapses. A biological male who identifies as female would count as “female” under federal law. Women’s colleges couldn’t exclude him. Women’s sports couldn’t bar him. Women’s bathrooms couldn’t prohibit him.
This affects your daughter competing for athletic scholarships. Parents choosing colleges for biological females. Students seeking privacy in dorms, bathrooms, locker rooms. Churches operating schools or receiving federal funds. Every American who believes objective reality should govern law.
The constitutional question is simple: When Congress wrote “sex” in 1972, what did they mean? And can executive agencies redefine statutory terms without Congressional authorization?
What Happened at Smith College
Smith College was founded in 1871 as one of the elite “Seven Sisters” women’s colleges. For 142 years, “women’s college” meant biological females.
In 2013, Smith denied admission to Calliope Wong, a biological male identifying as female, because financial aid forms didn’t match the claimed identity. Campus activism erupted.
On May 2, 2015, the Smith College Board of Trustees “voted to clarify Smith’s undergraduate admission policy to include self-identified transgender women.” Smith’s president stated at the time: “In the years since Smith’s founding, concepts of female identity have evolved.”
According to recent reporting, Smith’s website now states that “any applicants who self-identify as women; cis, trans, and nonbinary women” are eligible to apply. In practice, that category includes biological females and individuals who were born male but identify as women or as “nonbinary women.”
On May 18, 2025, Smith awarded Admiral Rachel L. Levine an honorary degree at its 147th commencement. Levine, a biological male who identifies as a transgender woman, served as assistant secretary for health under President Biden. Levine was one of four honorands invited to speak at the ceremony.
The department’s probe stems from a June 2025 complaint filed by conservative advocacy group Defending Education, which raised concerns about Smith’s policies on admissions and access to women-only spaces.
As the Department’s release states: “Title IX contains a single-sex exception that allows colleges to enroll all-male or all-female student bodies—but the exception applies on the basis of biological sex difference, not subjective gender identity.”
What “Sex” Meant in 1972: A First-Hand Account
I graduated from high school in 1972—the same year Congress passed Title IX. Let me tell you what the word “sex” meant to ordinary Americans that year.
It meant male or female. That’s it. Two biological categories, determined at birth, recorded on birth certificates and driver’s licenses. There was no debate about “gender identity”—the term didn’t exist in common usage or federal law.
Yes, there were homosexuals (that was the clinical term then, not “gay people”). But even in that context, everyone understood biological sex remained unchanged. A homosexual man was still a man. Sexual orientation and biological sex were separate concepts.
When Senator Birch Bayh introduced Title IX to prohibit discrimination “on the basis of sex,” every American knew what he meant. He meant preventing schools from discriminating against women because they were women. Not because of how anyone “identified.” Because of biological sex.
Black’s Law Dictionary (Revised Fourth Edition, 1968) defined “sex” as “the sum of the peculiarities of structure and function that distinguish a male from a female organism; the character of being male or female.” That is the definition lawyers would have seen in the standard legal dictionary in the years immediately surrounding Title IX’s enactment.
The terminology shift tells the story. In 1972, we didn’t have “cisgender” (invented in the 1990s), “nonbinary” (2000s and later), or “gender identity” as a legal term of art. These concepts were imported into law long after Congress enacted Title IX. You cannot retroactively impose 2026 concepts onto 1972 legislation.
The Constitutional Framework
Title IX (20 U.S.C. § 1681) provides that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance…”
The statute and regulations specify that Title IX’s admissions prohibition “does not apply to private undergraduate colleges,” while “all other programs and activities of private undergraduate colleges (including single-sex colleges) are governed by Title IX if the college receives any Federal financial assistance.” Public colleges that have “traditionally and continually from establishment” admitted only one sex can maintain that policy under 20 U.S.C. § 1681(a)(5).
The legal question: What did “sex” mean in 1972?
When Congress enacted Title IX, “sex” meant biological sex—the reproductive category (male/female) determined at conception, observable at birth, unchangeable throughout life. Congress didn’t debate gender identity. They couldn’t have—the concept didn’t exist in federal law.
Original intent originalism teaches that the Constitution means what the Framers intended, and statutes mean what Congress intended. Courts and agencies enforce laws; they don’t rewrite them. If Congress wants “sex” to mean “gender identity,” the legislative process exists for that purpose: debate, vote, enact new law. Not administrative reinterpretation.
Smith’s 2015 justification stated: “In the years since Smith’s founding, concepts of female identity have evolved.” But legal categories can’t “evolve” through college policy statements. If every institution can redefine “sex” however it wants, federal law becomes meaningless.
The DOE argues Smith claims two contradictory things: (1) We deserve a single-sex exemption (women only), and (2) We admit biological males (not women only). You can’t have it both ways under a statute that uses “sex” as an objective category.
The Supreme Court Connection
Two cases were argued before the Supreme Court on January 13, 2026: Little v. Hecox (No. 24-38) from Idaho and West Virginia v. B.P.J. (No. 24-43). Both challenge state laws banning biological males from girls’ sports teams. The Court’s decision, expected in June 2026, will answer the same question Smith faces: What does “sex” mean in Title IX—biology or identity?
The DOE’s timing is strategic. Opening this investigation in May 2026—four months after oral arguments and roughly six weeks before the expected decision—positions the agency’s interpretation before the Court rules.
If the Supreme Court rules that “sex” means biological sex, the Smith investigation proceeds and the DOE’s theory is validated. Every women’s college admitting biological males faces the same question.
If the Supreme Court rules that “sex” includes gender identity, the Smith investigation collapses and Title IX is reinterpreted without Congress ever voting on the change—a constitutional problem in itself.
The Court’s answer determines whether objective biology or subjective identity governs federal law.
What God’s Word Says
“So God created man in his own image, in the image of God he created him; male and female he created them.” (Genesis 1:27)
God didn’t create a spectrum. He created two sexes, distinct and complementary, each bearing His image. This wasn’t arbitrary—it reflects the nature of God Himself and establishes the foundation for marriage, family, and human flourishing.
“For you created my inmost being; you knit me together in my mother’s womb. I praise you because I am fearfully and wonderfully made.” (Psalm 139:13-14)
Here David acknowledges that God personally designs each human being—including biological sex—as an intentional act of divine craftsmanship. The body tells us who we are. It reveals God’s design. We don’t tell the body who we are.
Scripture presents humans as unified beings—body and soul integrated. Gnostic dualism, which claims the body doesn’t matter and only the inner self counts, is heresy. When someone born male claims to be female, they’re not “discovering their true self”—they’re rejecting God’s design written into their very cells.
Christians must show compassion to those experiencing gender dysphoria—real people bearing real pain in a fallen world. But compassion doesn’t require calling a lie truth. Love means pointing people to the God who created them, not affirming rebellion against His design.
This battle isn’t ultimately about bathrooms or sports—it’s about whether God’s creative authority or human autonomy determines reality.
The Opposition’s Best Argument
Proponents of gender identity policies argue: “Transgender women are women. Gender identity—a person’s internal sense of being male or female—is what determines sex, not chromosomes or anatomy. Excluding transgender women from women’s colleges perpetuates discrimination and denies their lived experience. Title IX was designed to protect against sex discrimination, which includes discrimination based on gender identity. Forcing someone to conform to their ‘biological sex’ when it conflicts with their gender identity causes psychological harm and violates their dignity.”
This argument deserves consideration because people with gender dysphoria experience real distress. Advocates genuinely believe they’re protecting vulnerable individuals from harm. The desire to be inclusive and affirming comes from a place of compassion.
However, this argument fails for three reasons.
First, compassion doesn’t require accepting false premises. A person’s sincere belief doesn’t create reality. A biological male who identifies as female is still male—no amount of surgery, hormones, or documentation changes his chromosomes.
Second, legal categories require objective definitions to function. If “woman” means “anyone who identifies as woman,” the category becomes meaningless, and all sex-based protections collapse. Athletic scholarships depend on sex classifications. Housing assignments use sex categories. Privacy protections assume sex-based spaces. Without objective definitions, none of these work.
Third, this redefines federal law without Congressional action, violating constitutional separation of powers. Congress wrote “sex” in 1972 meaning biological sex. If they want to change that to “gender identity,” they must pass new legislation—not let agencies or courts rewrite statutes through interpretation.
Other Women’s Colleges Face the Same Question
Smith isn’t alone. Multiple elite women’s colleges now admit biological males. Wellesley admits “students who live and consistently identify as women.” Mount Holyoke admits “everyone except cisgender men”—meaning biological males identifying as female or nonbinary can apply. Bryn Mawr, Mills, and Simmons have similar policies.
If the DOE’s legal theory holds, every women’s college admitting biological males loses its single-sex exemption. This affects athletic programs, housing facilities, bathroom and locker room policies, and any sex-segregated program receiving federal funds.
This isn’t limited to elite colleges. Any institution claiming single-sex status faces the same question: If you say “women only” while admitting biological males, you’re making contradictory claims under federal law.
What Happens Next—and Where Our Hope Lies
The Supreme Court’s decision, expected in June 2026, will likely determine the Smith investigation’s outcome. The Court’s interpretation of “sex” in Title IX controls how every school in America must handle these issues.
Meanwhile, parents choosing colleges face uncertainty. Female athletes wonder about fair competition. Women seeking single-sex spaces question their legal protections.
For Christians, this is spiritual warfare: “For we do not wrestle against flesh and blood, but against the rulers, against the authorities, against the cosmic powers over this present darkness, against the spiritual forces of evil in the heavenly places.” (Ephesians 6:12)
The enemy wants to erase the Creator’s design, blur the image of God, and replace divine truth with human autonomy. Every attack on biological sex is ultimately an attack on Genesis 1:27.
But our hope isn’t in court decisions. “The LORD sits enthroned over the flood; the LORD sits enthroned as king forever.” (Psalm 29:10)
God remains sovereign. Nations rage, courts rule, cultures shift—but the One who created male and female hasn’t changed His mind. Our calling isn’t to win culture wars but to be faithful witnesses.
Action Steps for Believers
Pray for wisdom and courage for Supreme Court justices, attorneys arguing these cases, and families affected by gender ideology in schools.
Teach your children God’s design for male and female. Don’t assume the culture will reinforce biblical truth—it won’t.
Support organizations defending biological reality in law and protecting women’s spaces, sports, and privacy.
Speak truth with grace when opportunities arise. You don’t need a law degree to say “God created male and female.”
Choose carefully when selecting colleges for your children. Research admissions policies. Ask direct questions about single-sex housing and facilities.
Stand firm in biblical conviction while showing compassion to individuals struggling with gender dysphoria. Truth and love aren’t opposites—they work together.
Conclusion: What’s Really at Stake
The Smith College investigation forces America to answer: Does objective biological reality or subjective self-identification govern federal law?
If “sex” can be redefined by executive agencies without Congressional action, no legal category is stable. Male/female, parent/child, citizen/non-citizen—all become fluid, subject to administrative reinterpretation.
For Christians, the answer is clear. God created two sexes. Federal law in 1972 reflected that reality. Courts must interpret laws as written, not rewrite them to fit contemporary ideologies.
The Supreme Court will rule soon. Outcomes matter, but our hope rests in the One who “sits in the heavens and laughs” at the schemes of men (Psalm 2:4).
Until Christ returns and makes all things right, we stand firm on Genesis 1:27: God created them male and female. That truth won’t change, regardless of what courts decide.
The battle is real. So is our God.
Related Reading:
- Louisiana v. Callais: Similar Constitutional Category Question
- More Constitutional Analysis
- Constitutional Education Resources
The views and opinions expressed in this article are those of the author and do not necessarily reflect the views of the Virginia Christian Alliance.
We welcome thoughtful and respectful dialogue from all viewpoints. Comments must remain civil, relevant, and free of profanity, personal attacks, or mockery of Christian faith. Disagreement is allowed—disrespect is not.
