On May 4, 2026, the U.S. Department of Education announced that its Office for Civil Rights (OCR) had opened a Title IX investigation into Smith College, the 155-year-old liberal arts institution in Northampton, Massachusetts. The investigation targets Smith’s longstanding admissions policy of considering applications from anyone who self-identifies as a woman — cisgender, transgender, or nonbinary. The complaint that triggered the inquiry was filed by Defending Education, a conservative advocacy nonprofit, not by anyone affiliated with Smith.
The investigation is the latest front in a broader regulatory and litigation push, accelerated under the second Trump administration, to interpret federal anti-discrimination law as protecting categories defined by biological sex assigned at birth rather than gender identity. For colleges and universities — and for the lawyers who advise them — the Smith inquiry is a useful lens through which to revisit the statute, the regulations, and the open questions that institutions will need to navigate.
The statutory framework
Title IX of the Education Amendments of 1972, codified at 20 U.S.C. § 1681 et seq., prohibits discrimination “on the basis of sex” in any education program or activity receiving federal financial assistance. The statute itself is famously brief: it does not define “sex,” and Congress has never amended it to do so.
Built into the statute, however, is a narrow carve-out central to this dispute. Section 1681(a)(5) exempts the admissions policies of “public institutions of undergraduate higher education” that have “traditionally and continually from [their] establishment” admitted only one sex. Section 1681(a)(1) and the implementing regulations at 34 C.F.R. § 106.15 extend an analogous admissions exemption to private undergraduate institutions. This is the so-called “single-sex exception,” and it is the legal hook the Department is using to question Smith’s policy.
OCR’s public statement frames the issue this way: the single-sex exception, in the Department’s current view, applies on the basis of biological sex, not gender identity, so a women’s college that admits trans women has — in OCR’s words — stepped outside the exception and is now operating a coeducational program that discriminates against men in admissions. Smith, for its part, has said it remains committed to compliance with civil rights laws and does not comment on pending investigations.
The interpretive battleground
The legal question is not whether “sex” appears in Title IX — it does — but how that term should be construed when applied to admissions, athletics, housing, and bathrooms. Three interpretive layers are now in tension:
First, the statutory text. Because Title IX does not define “sex,” courts and agencies have had to fill the gap. The Supreme Court’s decision in Bostock v. Clayton County, 590 U.S. 644 (2020), held that Title VII’s prohibition on sex discrimination encompasses discrimination based on gender identity and sexual orientation. Several federal circuits — most notably the Fourth in Grimm v. Gloucester County School Board, 972 F.3d 586 (4th Cir. 2020) — have read Bostock‘s logic into Title IX. The Eleventh Circuit took the opposite view in Adams v. School Board of St. Johns County, 57 F.4th 791 (11th Cir. 2022) (en banc).
Second, the agency layer. Title IX is enforced primarily through OCR, and OCR’s interpretation has swung sharply across administrations. The Obama-era 2016 Dear Colleague letter on transgender students was rescinded under the first Trump administration; the Biden administration’s 2024 Title IX final rule expressly extended protections to transgender students; and that rule was vacated nationwide in Tennessee v. Cardona, before being formally rescinded under the second Trump administration. Each shift has significant downstream effects on what investigators will treat as compliant.
Third, the constitutional layer. Smith is a private institution. While Title IX reaches private colleges through the funding hook, private schools may also raise First Amendment associational and academic-freedom defenses if the government attempts to dictate the composition of a single-sex student body. Those arguments are largely untested in this exact posture and would likely become central in any enforcement litigation.
What the OCR process looks like from here
Opening an investigation is not a finding of liability. Under 34 C.F.R. Part 106 and OCR’s Case Processing Manual, the Department typically issues a data request, conducts interviews, and then issues either a letter of finding (with or without violations) or a resolution agreement. If OCR concludes a recipient is out of compliance and voluntary resolution fails, the ultimate enforcement tool is referral to the Department of Justice or the initiation of administrative proceedings to suspend or terminate federal financial assistance under 20 U.S.C. § 1682. That outcome is rare and slow, but the leverage of the funding threat — and the reputational weight of an open investigation — typically drives the practical dynamics.
Why this matters beyond Smith
There are roughly thirty institutions in the United States that still identify as women’s colleges, including Wellesley, Mount Holyoke, Bryn Mawr, Barnard, Spelman, and Scripps. Most have, over the past decade, adopted admissions policies similar to Smith’s. An adverse finding against Smith — or even a settlement that narrows its admissions policy — would be cited by OCR in any future complaint against those peers.
The investigation also signals a broader theory the Department is willing to test: that institutional policies recognizing gender identity are not merely optional accommodations but, where they intersect with sex-segregated programs, potential Title IX violations in their own right. That theory, if it holds, could reach far beyond admissions — into housing assignments, locker room access, athletic eligibility, and scholarship eligibility at coeducational institutions as well.
Practical takeaways for institutions
Colleges and universities that have adopted gender-inclusive policies should not assume the Smith investigation is an isolated event. A few concrete steps are worth considering now: (1) document the institutional, mission-based, and educational rationale for current admissions and housing policies, in language that anticipates a Title IX inquiry; (2) review board minutes, policy statements, and student handbooks for consistency, since OCR will request them; (3) coordinate with general counsel before responding to any data request, and assert applicable privileges and FERPA limitations early; and (4) monitor regulatory developments closely, because the underlying Title IX rule is once again likely to change before any Smith investigation concludes.
None of this is a prediction about how the Smith investigation will end. The legal terrain is genuinely unsettled, and the relevant statutes, regulations, and judicial decisions can plausibly be read in more than one way. What the inquiry does confirm is that the Title IX questions surrounding gender identity — thought by many institutions to have been substantially resolved during the Biden rulemaking — are now firmly back in play, and that the next round of litigation and rulemaking will have material consequences for how every federally funded school operates.
