A Seismic Shift in Interpretation & Enforcement in 2025 — Those in Education, Take Note!
Since January, multiple fundamental developments have dramatically altered the Title IX landscape, signaling a seismic shift in its interpretation and enforcement. These developments include a rapidly escalating and public feud between the Trump administration and the Maine Department of Education over Maine’s refusal to ban transgender girls from participating in school athletic competitions designated exclusively for girls. These interpretation and enforcement developments implicate issues of constitutional law, states’ rights and practical politics, and it is critical for those working in education and receiving federal funding to understand and navigate the changes.
Legal & Political Backdrop
Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), prohibits sex-based discrimination in employment, while Title IX of the Education Amendments of 1972 (“Title IX”) prohibits sex discrimination in education programs and activities of recipients that receive federal funding, including state and local educational agencies. The U.S. Supreme Court's 2020 landmark decision in Bostock v. Clayton County expanded Title VII's definition of “sex” to include sexual orientation and gender identity. However, Congress has rejected multiple efforts to amend Title IX to include gender identity, while including gender identity and sexual orientation as protected categories in other legislation, such as the 2013 amendments to the Violence Against Women Act. The first Trump administration's Title IX guidance (“2020 Title IX Rule”) also did not recognize gender identity or sexual orientation as “sex discrimination” under Title IX, a stance reversed by the Biden administration in 2024. The recent developments discussed below mark a return to the first Trump administration’s interpretation.
The U.S. Department of Education's (“DOE”) Office for Civil Rights (“OCR”) has historically implemented Title IX. The DOE was created in 1980 by congressional action with a stated mission of: (a) ensuring access to equal educational opportunity; (b) supplementing and complementing the efforts of States, the local school systems and other State instrumentalities, the private sector, public and private educational institutions, public and private nonprofit educational research institutions, community-based organizations, parents, and students to improve the quality of education; (c) encouraging the increased involvement of the public, parents, and students in Federal education programs; (d) promoting improvements in the quality and usefulness of education through federally supported research, evaluation, and sharing of information;(e) improving the coordination of Federal education programs; (f) improving the management and efficiency of Federal education activities; and (f) increasing the accountability of Federal education programs to the President, the Congress and the public. See Overview of the U.S. Department of Education.
Key Title IX Developments
Federal Court Ruling: On January 9, 2025, in State of Tennessee v. Cardona, the U.S. District Court for the Eastern District of Kentucky vacated the Biden administration's 2024 Title IX Rule defining “sex” to include sexual orientation and gender identity. The court ruled that the 2024 Title IX Rule -- defining sex discrimination to include gender identity and sexual orientation -- was unconstitutional in that it violated the First Amendment to the U.S. Constitution, and also that it was “vague and overbroad,” and a product of “arbitrary and capricious” rulemaking. This decision has resulted in an interesting situation for educational institutions that must prevent workplace discrimination and harassment against their faculty and staff based on gender identity and sexual orientation (under Title VII) but not afford the same protections for the institutions’ students under Title IX.
Executive Order on Sex Definition: On January 20, 2025, President Trump issued an Executive Order entitled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” redefining “sex” to refer only to an individual's immutable biological classification as male or female, excluding gender identity.
DOE “Dear Colleague” Letter: On February 4, the DOE issued a “Dear Colleague Letter” letter to educational institutions, informing them that it would be enforcing Title IX under the 2020 Title IX Rule implemented by the first Trump administration rather than the 2024 Title IX Rule, aligning with the court's decision and President Trump’s Executive Order. Thus, the 2020 Title IX Rule is now the operative rule.
Executive Order on Women's Sports: On February 5, President Trump issued an Executive Order entitled “Keeping Men out of Women’s Sports” to protect female athletes by ensuring they do not have to compete against individuals who are biologically male and threatening to withdraw federal funding from educational programs failing to comply with his order. In so doing, President Trump cited Title IX’s requirement that educational institutions receiving federal funding cannot deny women an equal opportunity to participate in sports.
The Trump Administration & the Maine Department of Education
Over the past eight weeks, the Trump administration and Maine have been locked in an escalating and increasingly public feud over Maine’s school gender-based athletic participation policies. A chronology includes:
On February 21, 2025, the U.S. Department of Health & Human Services (“HHS”) announced that its Civil Rights Office was conducting a compliance review of the Maine Department of Education, including the University of Maine System, “based on information that Maine intends to defy” the President’s Women’s Sports Executive Order. Specifically, HHS announced that the primary governing body for high school sports in Maine, the Maine Attorney General, and Maine’s Governor had issued statements that the state of Maine will continue to allow biological males to compete in women’s sports, and that HHS will investigate whether Maine engaged in discrimination on the basis of sex under Title IX. This included the Governor’s public “see you in court” comment to the President at a White House meeting on February 21.
Maine's Compliance Status: On March 17, the OCR at HHS announced that MDOE, the Maine Principals’ Association and Greely High School were in violation of Title IX for allowing transgender student-athletes who were assigned male at birth to compete in girls’ sports. These entities refused to sign a voluntary resolution agreement with OCR at HHS.
On March 19, the DOE notified Maine's Department of Education that allowing transgender girls to compete on girls' sports teams violated federal civil rights law, and threatened enforcement action and loss of federal funding. Also on March 19, the federal government, specifically DOE’s OCR, sent a letter to the Maine Department of Education (“MDOE”) concluding that MDOE was in violation of federal civil rights law by allowing transgender girls to compete on girls’ sports teams. In making the announcement, OCR stated “[I]f Maine does not swiftly and completely come into compliance with Title IX, we will initiate the process to limit MDOE’s access to federal funding.” It gave the state 10 days to either voluntarily agree to OCR’s proposed agreement to resolve MDOE’s noncompliance or risk “impending enforcement” action, including referral to the DOJ for proceedings. The Office for Civil Rights of the U.S. Department of Health and Human Services (“HHS”) then issued a similar letter, announcing that MDOE was violating HHS’ implementing regulations under Title IX.
On March 27, MDOE responded that it would not sign a letter of compliance to ban transgender athletes from competing in girls’ sports. It stated that “it would continue to follow state law and the “Maine Human Rights Act” and that complying with the federal proposal would violate current Maine law, setting up a legal showdown with DOE, HHS and the administration.
On March 28, HHS’ OCR announced that it had referred Maine’s Title IX case to the DOJ for enforcement on grounds of non-compliance.
On March 31, the DOE sent a “final warning” letter to Maine, giving MDOE 10 days -- until April 11 -- to sign a letter of compliance or risk being referred to the DOJ for criminal referral.
On April 11, the Maine Attorney General’s office informed the DOE’s OCR that it would not sign a resolution agreement that would have required MDOE to issue a directive prohibiting schools from allowing transgender students who were assigned male at birth to participate in girls’ sports. In a web posting entitled “Consequences for Maine’s Title IX Noncompliance”, the US DOE announced consequences for Maine’s Title IX noncompliance, including loss of federal K-12 education funding generally. Specifically, it has referred its Title IX investigation to the DOJ for further enforcement action. In addition, the DOE will initiate an administrative proceeding to terminate MDOE’s federal K-12 education funding.
This showdown culminated in DOJ’s April 15 suit against MDOE filed in Maine’s U.S. District Court alleging blatant and continuing violations by Maine of federal anti-discrimination law and Title IX’s “core protections” by allowing boys to compete against girls in athletic competitions designated exclusively for girls.
Title IX, Individual States’ Rights and Pre-emption Issues
This development raises several questions, including varied issues of constitutional law, states’ rights and practical politics. Over the past 10 years, more than 20 states have adopted their own laws specifically recognizing gender identity and sexual orientation as categories protected from discrimination in a variety of contexts, including education.
On the constitutional front, the Trump administration may be expected to argue that under the Constitution's Supremacy Clause, federal law supersedes and preempts any state laws which conflict with it, either expressly or implicitly. At the same time, the states that recognize gender identity and sexual orientation as legally protected categories will argue that the federal preemption doctrine does not apply as their laws do not conflict with federal law but rather, provide protections and rights to individuals greater than the federally-required minimum. More technically, Maine (and those states that adopted laws with such protections for individuals) may argue that under the U.S. Constitution’s Tenth Amendment, powers not delegated to the federal government, nor prohibited to the states, are specifically reserved to the states and their people, and their states’ laws have done just that.
More practically, the administration is expected to continue to use the threat of loss of federal funding and federal law enforcement as the price to be paid for a state seeking to enforce its own laws that the Trump administration deems conflicting with federal policy.
Dismantling DOE
On March 20, President Trump signed an “Executive Order Dismantling DOE“ entitled “Improving Education Outcomes by Empowering Parents, States, and Communities”, directing the Secretary of Education to close the DOE, aiming to “return its main functions to the states and local communities.”
Critics of the DOE have long called for its elimination, claiming that ever since its politically-motivated formation, it has lost focus and a clear sense of purpose from its stated mission. President Trump’s Executive Order faces significant legal challenges and opposition from education advocates.
Key Immediate Takeaways – What Does All of This Mean?
These actions by the federal government represent a fundamental shift in Title IX enforcement. Institutions covered by Title IX must carefully review and potentially revise their Title IX policies to ensure compliance with the current regulatory framework and retrain their staff on the 2020 Title IX Rule requirements. The ongoing legal and political battles suggest further changes may occur, necessitating continuous monitoring and adaptation.
