On Feb. 5, National Girls & Women in Sports Day, President Donald Trump signed an executive order titled “Keeping Men Out of Women’s Sports” declaring “it is the policy of the United States to oppose male competitive participation in women’s sports more broadly, as a matter of safety, fairness, dignity, and truth.” The directive is aimed at prohibiting transgender women and girls from competing in women’s sports.
The order directs the Education Department to carry out the policy by changing its interpretation of Title IX of the Civil Rights Act of 1972 prohibiting sex discrimination in programs that receive federal funding. The definitions track those in Executive Order 14168, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” which we discussed earlier this month. The Biden administration had issued proposed regulations in 2023 that would have prohibited schools from categorically barring the participation of transgender athletes in sports but were withdrawn last year. Instead, the Trump administration order directs the Education Department to “take all appropriate action to affirmatively protect all-female athletic opportunities and all-female locker rooms.” Educational programs that do not follow the directive are at risk of losing federal funding.
The order directs state attorneys general to identify best practices for ensuring equal opportunities for women in sports and to highlight impact stories of women harmed by male athletes competing in women’s sports. The order also directs the State Department to push the International Olympic Committee to make similar changes at the international level by making eligibility “determined according to sex and not gender identity or testosterone reduction” and rescinds U.S. support for and participation in people-to-people sports exchanges or other sports programs within which the relevant female sports category is based on identity and not sex.
Following Trump’s order, the Education Department announced that it would investigate the University of Pennsylvania, San Jose State University and Massachusetts Interscholastic Athletic Association for suspected violations of Title IX. The change has already compelled athletic governing bodies, such as the National Collegiate Athletic Association (NCAA), to update their policies to comply with the order.
This order may create a conflict between federal and state law in some instances. Schools that have permitted transgender student-athletes to participate according to gender identity and not necessarily their sex assigned at birth to comply with state law may now find themselves at risk of violating federal law. Schools should confer with their attorneys when evaluating current policies, particularly in light of expected legal challenges to the order.
Miles & Stockbridge’s labor and employment lawyers will continue to monitor the executive order and its impact on Title IX regulations and enforcement.
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