In the last several weeks, three seismic events have altered the Title IX compliance landscape for colleges and universities around the country: A federal district court’s vacation of the Biden administration’s 2024 Title IX regulations; President Donald Trump’s executive order limiting the federal definition of “sex”; and the Department of Education’s Dear Colleague Letter reinstating 2020 Title IX regulations. Institutions of higher education should be aware of these three key developments to ensure that they are complying with the federal government’s policies regarding Title IX.
The Title IX Landscape During the Biden Administration
In 2020, the United States Supreme Court held in Bostock v. Clayton County that Title VII’s prohibition against workplace discrimination based on sex also encompassed discrimination based on sexual orientation and gender identity.[1] On taking office in Jan. 2021, President Joe Biden issued an executive order directing the heads of federal agencies to review agency actions in light of the Supreme Court’s holding in Bostock and the Biden administration’s general aim“ to prevent and combat discrimination on the basis of gender identity or sexual orientation[.]”[2] In response to the president’s directive, on May 2021, the Department of Justice issued a memorandum instructing federal agencies to apply Bostock’s interpretation of sex discrimination under Title VII to Title IX.
In Aug. 2024, the Department of Education’s amendments to Title IX regulations became effective.[3] These amendments included explicit protections for individuals from discrimination on the basis of sexual orientation and gender identity, aligning regulation with the Biden administration policy.
A Federal District Court Vacates the Biden Administration’s 2024 Title IX Regulations
On Jan. 9, 2025, the United States District Court for the Eastern District of Kentucky issued a ruling vacating the Biden administration’s 2024 Title IX regulations.[4] Determining the entire 2024 Title IX Final Rule unlawful, the court took aim at the regulations’ definition of sex discrimination, stating that “when Title IX is viewed in its entirety, it is abundantly clear that discrimination on the basis of sex means discrimination on the basis of being a male or female.” It further opined that the Supreme Court’s decision in Bostock “is a very shaky place for the Department [of Education] to hang its hat” as Bostock only addressed discrimination in the context of Title VII.
President Trump’s Executive Orders
Upon taking office, on Jan. 20, 2025, President Trump issued an executive order instructing federal agencies to define “sex” solely in reference to an individual’s “immutable biological classification as either male or female” without consideration for the individual’s “gender identity.”[5] The execute order further directed federal agencies, including the Department of Education, to rescind all agency guidance inconsistent with the executive order’s definition of sex. The executive order specifically instructed the attorney general to issue guidance to federal agencies “to correct the misapplication of the Supreme Court’s decision in Bostock” to Title IX.
The Dear Colleague Letter
On Jan. 31, 2025, the Department of Education’s Office for Civil Rights, in accordance with the aforementioned executive order, issued a Dear Colleague Letter stating its intent to enforce Title IX under the provisions of the 2020, not 2024, Title IX regulations.[6] The Letter cites both the federal court’s ruling in Cardona and the executive order as establishing that “the binding regulatory framework for Title IX enforcement includes the principles and provisions of the 2020 Title IX Rule and the longstanding Title IX regulations outlined in 34 C.F.R. 106 et seq., but excludes the vacated 2024 Title IX Rule.”
The Letter further advises colleges and universities that current investigations initiated according to the 2024 regulations should be “immediately reevaluated to ensure consistency with the requirements of the 2020 Title IX Rule.”
Moving Forward
Unsurprisingly, it does not appear that the federal government under the Trump administration will appeal the district court’s ruling in Cardona. Nevertheless, the legal situation is changing on a nearly daily basis, as lawsuits are underway to enjoin the implementation and enforcement of the Trump administration’s executive orders. At the time of writing, however, the 2020 Title IX regulations are once again the rules of the road. Institutions of higher education must therefore review and revise their Title IX policies and procedures to comply with those regulations. Colleges and universities must also prepare to navigate the now-disparate applications of Bostock to different federal laws; whereas, for example, transgender faculty and staff are protected by Title VII under Bostock, transgender students are no longer protected under Title IX.
[1] 590 U.S. 644, 683 (2020).
[2] Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, Exec. Order No. 13988 (January 20, 2021), https://www.govinfo.gov/content/pkg/DCPD-202100057/pdf/DCPD-202100057.pdf.
[3] Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 4/29/2024.
[4] State of Tennessee v. Cardona, 2:24-cv-072-DCR (E.D. Ky. Jan. 9, 2025).
[5] Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, Exec. Order No. 14168 (Jan. 20, 2025), https://www.whitehouse.gov/presidential-actions/2025/01/defending-women-from-gender-ideology-extremism-and-restoring-biological-truth-to-the-federal-government/.
[6] Craig Trainor, Acting Assistant Sec’y for Civil Rights, Office for Civil Rights, U.S. Dep’t of Educ., Dear Colleague Letter (Feb. 4, 2025), https://www.ed.gov/media/document/title-ix-enforcement-directive-dcl.
