Summary
On January 31, the U.S. Department of Education (DOE) confirmed that, effective immediately and applicable to all open Title IX investigations, it will enforce the first Trump administration’s 2020 Title IX regulations (the 2020 Rule), rather than the Biden-era regulations (the 2024 Rule). The reinstated 2020 Rule, inter alia, limits Title IX sexual harassment claims to those based on sex assigned at birth. This follows President Trump’s January 20, 2025, executive order for all federal executive agencies to recognize only “two sexes, male and female.”
The Upshot
- On January 9, 2025, a federal district court vacated the 2024 Rule, but provided little guidance on how long institutions would have to comply with the new legal landscape, and most importantly, whether the DOE planned to revert back to prior regulations. The DOE has now confirmed that the court’s ruling returned Title IX enforcement to the 2020 Rule.
- The DOE no longer interprets Title IX’s prohibition of discrimination “on the basis of sex” as including discrimination on the basis of sex stereotypes, sexual orientation, gender identity (including transgender status), or sex characteristics.
- President Trump’s January 20, 2025, Executive Order, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” (Executive Order), ordered federal agencies to promptly rescind all guidance inconsistent with the Executive Order’s decree that the federal government should only recognize sex assigned at birth and “two sexes, male and female” (excluding nonbinary identities).
- In compliance with the Executive Order and consistent with the federal court’s vacatur of the 2024 Rule, the DOE issued a Dear Colleague Letter (DCL), confirming that educational institutions should ensure all policies and investigations are consistent with the 2020 Rule. The DCL provides that its guidance is effective immediately and applies to all open Title IX investigations.
The Bottom Line
The DCL confirms that all schools that receive federal financial assistance must implement or maintain policies that comply with the 2020 Rule. Crucially, this change is effective immediately and applies to all open investigations, regardless of which regulation was in effect at the time of the complained-of conduct.
A. State of Tennessee, et al. v. Cardona
As described in our previous Alert, on January 9, 2025, the U.S. District Court for the Eastern District of Kentucky vacated the Biden Administration’s 2024 Rule across the country. The court found the Department of Education (DOE) exceeded its statutory authority by redefining “on the basis of sex” inconsistently with what the court found is Title IX’s express language and purpose: to combat discrimination against women. It also found the 2024 Rule was arbitrary and capricious and constitutionally infirm based on the Spending Clause and First Amendment principles of vagueness and overbreadth.
As a result, the court struck down the 2024 Rule in its entirety, suggesting that schools should revert back to complying with the 2020 Rule. However, the court’s opinion did not provide schools with guidance as to how much time they had to comply with the new legal landscape or whether the DOE would, in fact, return to enforcing Title IX under the 2020 Rule.
B. The Executive Order
On his first day in office, January 20, 2025, President Trump issued the Executive Order, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” (Executive Order), denouncing the Biden administration’s more expansive definition of “sex” and requiring executive agencies to rescind any rules inconsistent with the administration’s policy of defining “sex” as “an individual’s immutable biological classification as either male or female” and “not a synonym for and does not include the concept of ‘gender identity’”—thus excluding discrimination on the basis of transgender identity. The Executive Order explicitly directs the DOE to rescind the 2024 Rule and guidance aimed at protecting LGBTQIA+ students from harassment and other forms of discrimination under Title IX.
C. The Dear Colleague Letter
In response to the Executive Order, the DOE issued a Dear Colleague Letter (DCL) confirming it will enforce Title IX according to the 2020 Rule. In so doing, the DOE agreed with the Eastern District of Kentucky’s analysis of the 2024 Rule, stating that the expansion of “on the basis of sex” to include gender identity, sex stereotypes, sex characteristics, and sexual orientation was inconsistent with the original meaning of Title IX.
The DCL clarifies that, effective immediately, all Title IX investigations, including those initiated under the 2024 Rule, must proceed under the 2020 Rule, regardless of when the alleged misconduct occurred. The DCL provides links to pre-2024 guidance on the DOE’s website.
D. Practical Effect
While claims of discrimination based on gender identity, sex stereotypes, sex characteristics, sexual orientation, and pregnancy or related conditions are no longer recognized as forms of sex discrimination by the DOE, schools may still have state and local law obligations to prevent such discrimination. Educational institutions should also be aware that Title VII still prohibits employment discrimination based on sexual orientation and gender identity.
E. Conclusion
Schools should examine all open investigations to ensure they comply with the 2020 Rule, regardless of whether the underlying conduct occurred while the 2024 Rule was in effect. Likewise, educational institutions should ensure their Title IX policies and training protocols comply with the 2020 Rule without delay.
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