“The incoming president has promised to undo the Biden administration’s rule, which interprets the law’s protections to include LGBTQ+ students and staff.”
Why this is important: The Biden administration’s amended Title IX regulations, among other changes, expanded the law’s protection to include LGBTQ+ students and staff. This Final Rule took effect on August 1, 2024; however, it has continuously been met with obstacles impairing its enactment in many states.
Due to the controversial expansion of sex discrimination under the Final Rule, numerous states, school districts, and parental rights organizations almost immediately filed lawsuits across country in response. The plaintiffs sought preliminary injunctions to enjoin the subjected states and schools from implementing the Final Rule and obtained them with astounding success. As a result of these efforts, at least 26 states and 670 institutions are enjoined from implementing the Final Rule. However, both the Education Secretary and U.S. Department of Education have appealed the injunctions, and as of today, oral arguments have already been heard in the matter of Louisiana, et al. v. U.S. Department of Education before the Fifth Circuit, as well as in the matter of Tennessee, et al. v. Cardona before the Sixth Circuit. The matter of Alabama, et al. v. U.S. Secretary of Education is on appeal in the Eleventh Circuit, and oral arguments are scheduled for December 18, 2024.
Despite this litigation, the election of President Trump for a second term presents a more significant threat to the Final Rule. In particular, President Trump has promised that his administration will either rescind the Final Rule or revert Title IX back to the regulations of 2020. For schools in states that are enjoined from implementing the Final Rule, a return to the 2020 regulations would simply mean continuing to follow their current Title IX policies, which have yet to implement the Final Rule. However, schools that overhauled their policies to comply with the Final Rule by the start of the 2024 - 2025 school year would be obligated to amend them once again. On the other hand, if the Trump administration decides to implement entirely new regulations, Title IX experts expect that such regulations will not be finalized until the end of 2026 or the beginning of 2027, at the earliest.
In addition to the expansion of sex-based protections under Title IX, the Trump administration will also likely address the treatment of transgender student inclusion in sports. Under the Biden administration, the Department of Education proposed a rule to prohibit blanket bans on transgender students’ participation on sports teams aligning with their gender identity. Within this proposed rule, the Biden administration also created a framework for schools when drafting transgender athlete inclusion policies. However, the Biden administration never finalized the rule that would enforce such policies.
Even if the Biden administration worked to finalize the Title IX rule regulating the treatment of transgender students in athletics, it is likely that Congress would side with the Trump administration and overturn such rule under the authority of the Congressional Review Act (CRA). The CRA authorizes Congress to overturn certain actions of federal agencies within 60 congressional days. In 60 days, the newly elected members of Congress will take office, which is now a Republican majority in both the House and the Senate. Although not guaranteed, it is very likely that Congress will follow the direction that President Trump has projected on all Title IX issues, so Congress may even work to pass new legislation concerning such issues. --- Emily R. Merritt
