By Holly McIntush, Lisa A. Brown, Katie Long, and Kendra Yoch 

The first days of the new Trump administration were a whirlwind of activity that may have left many educators, school administrators, and Title IX personnel with legal whiplash. The executive orders and new federal guidance on the definition of “sex” under Title IX have educational institutions wondering whether, when, and how to change their policies, particularly in states where the new guidance may conflict with their state laws or federal caselaw.  

We will dive in with an overview of these recent developments and where they leave schools in their efforts to comply with their Title IX obligations. 

New executive orders on “sex” and “radical indoctrination”  

The president issued an executive order declaring that “sex” shall refer to “an individual’s immutable biological classification as either male or female” and “does not include the concept of ‘gender identity.’” The order directs all federal agencies and employees to use this definition “when interpreting or applying statutes, regulations, or guidance.”  

Nine days later, the president issued an executive order aimed at what the administration characterized as “radical indoctrination in K-12 schools.” This order does not require action by schools. Rather, it orders the Secretary of Education and other agency heads to consult with the Attorney General to provide an “Ending Indoctrination Strategy” to President Trump. The president directs these agency heads to include “recommendations and a plan for eliminating federal funding” for “illegal and discriminatory treatment and indoctrination in K-12 schools, including based on gender ideology and discriminatory equity ideology.” 

Executive orders do not change federal or state law or existing federal regulations. Executive orders are also not binding on courts, which are the ultimate arbiters of what a statute means and requires. Rather, the executive orders direct federal administrative agencies on how to apply the laws they are charged with enforcing. They also convey administrative priorities and provide insight into how federal agencies will enforce existing laws.  

Initial agency response to the executive orders   

Subsequently, the EEOC removed guidance from its website on LGBTQ discrimination and other forms of harassment and released a statement indicating that the Acting EEOC Chair’s priorities for compliance, investigations, and litigation is “to defend the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work.” However, the release also acknowledged that the acting chair could not unilaterally change existing EEOC guidance, including the Commission’s Enforcement Guidance on Harassment in the Workplace, the EEOC Strategic Plan 2022-2026, and the EEOC Strategic Enforcement Plan Fiscal Years 2024-2028—even if that guidance is contrary to the new executive order. For now, EEOC investigators must follow this guidance but expect future changes.  

On January 31, 2025, the Office for Civil Rights weighed in with a Dear Colleague Letter (CDL) on Title IX. Days later, on February 4, it withdrew that letter and issued a replacement DCL – vividly illustrating the break-neck speed at which the new administration is making changes and the challenge it presents for educational institutions. Both letters confirm that OCR will enforce the 2020 Title IX rules (issued under the first Trump Administration), while the February 4 DCL advises schools that “open Title IX investigations initiated under the 2024 Title IX Rule should be immediately reevaluated to ensure consistency with the requirements of the 2020 Title IX Rule.” This means schools and institutions that have not reverted back to the 2020 process need to do so now, along with training staff on the 2020 procedures. Both versions of the DCL state that OCR will interpret and enforce Title IX consistent with the January 20 executive order. While DCLs are not legally binding on schools, they tell us what OCR will expect to see from schools when it investigates complaints—and OCR resolution agreements are binding. 

Unanswered Questions 

This is a Title IX blog, so let’s start with the text of the statute itself. It prohibits discrimination “on the basis of sex” but it does not define “sex.”  The statutory language neither includes nor excludes gender identity, sex characteristics, or sexual orientation.  

Nor do the 2020 Rules, which are silent on the subject. Since 1980, the Title IX regulations have stated that schools “may provide” separate restrooms, locker rooms, and other intimate facilities, so long as the facilities are comparable for each sex. The regulations, as worded, do not mandate separate facilities, prohibit gender-neutral facilities, or provide guidance on which sex-separate facilities transgender students should use or how to determine a student’s or campus visitor’s sex.  

As to sexual harassment, when the 2020 rules were released, the first Trump Administration issued guidance in the Federal Register stating that “any individual—irrespective of sexual orientation or gender identity—may be victimized by the type of conduct defined as sexual harassment to which a recipient must respond under these final regulations.”  And a March 2020 letter from the first Trump administration to a congressional committee confirmed “that while Title IX does not prohibit discrimination on the basis of sexual orientation per se, Title IX covers sex discrimination more broadly directed at LGBTQ students.”  

In some jurisdictions, the language in the executive orders and the DCL openly conflicts with state law or federal court decisions that have held in various contexts (including the context of restroom usage) that discrimination on the basis of sexual orientation or gender identity violates Title IX or the Equal Protection Clause in the U.S. Constitution. The language is also at odds with the Clery Act, which expressly requires institutions of higher education to collect and report data on crimes based on a person’s sexual orientation or gender identity. Further, in the employment context, the U.S. Supreme Court has held that Title VII prohibits discrimination against employees based on sex stereotyping  and on the basis of sexual orientation and gender identity. Executive orders cannot and do not overrule federal court rulings. Indeed, the U.S. Supreme Court recently clarified that federal courts are not bound by administrative or executive interpretations of Acts of Congress.   

These legal issues, including access to restrooms and sports teams, are being actively litigated around the country and ultimately will need to be resolved by the Supreme Court. Other significant issues in litigation include the conflict that may arise between a person’s religion and adherence to school rules regarding sexual orientation or gender identity.  

As you can see, the January 2025 administrative directives do not settle the question of how a school or institution of higher education must handle sex-separate facilities and activities or complaints of discrimination or harassment based on transgender status or sexual orientation. To the contrary, they add complexity by underscoring potentially conflicting laws and different standards for administrative actions and lawsuits.  We strongly recommend consulting legal counsel as you work through these issues or prepare new policies. You can always reach out to our Title IX attorneys by phone or at TitleIX@thompsonhorton.com 

Kendra and Holly will discuss the state of the law and litigation on these issues in next week’s TacTIX webinar, New Head Coach Directs New Plays. How Will Players, Refs Respond?  on February 12 at 1pm cst. You can register for the 2025 TacTIX Season here.