By: Sally Roller
On January 9, 2025, the U.S. District for the Eastern District of Kentucky vacated the Biden administration’s 2024 Title IX regulations in a landmark case, Tennessee v. Cardona.[1] The decision applies nationwide, meaning the 2020 Title IX final rule and regulations are effective. The Court found that the 2024 Title IX regulations: (1) exceeded its authority under Title IX by extending the definition of discrimination on the basis of sex beyond “discrimination on the basis of being a male or female”; and (2) violated constitutional free speech protections; and (3) resulted in an arbitrary and capricious agency action. As such, the Court found that the 2024 Title IX regulations are unenforceable in schools, colleges, and universities nationwide.
On January 31, 2025, the U.S. Department of Education announced that it will officially enforce the 2020 Title IX regulations, returning to “enforcing Title IX protections on the basis of biological sex in schools and campuses.”[2] The Department said that returning to the 2020 Title IX rule “ends a serious threat to campus free speech and ensures much stronger due process protections for students during Title IX proceedings.”[3]
Some opponents of the 2024 Title IX Regulations disagreed with the rule’s inclusion of explicit protections for transgender students.[4] The 2024 Title IX regulations allowed students to use the bathrooms and locker rooms that align with their gender identify. Critics argued the change would harm cisgender women. President Donald Trump declared in an executive order signed on his first day in office that there are two sexes: male and female.[5] Acting Assistant Secretary for Civil Rights Craig Trainor wrote in a Dear Colleague letter that the federal judge who vacated the Title IX 2024 regulations “correctly repudiated the 2024 Title IX Rule’s expanding meaning of ‘on the basis of sex’ to include ‘gender identity.’”[6] He further stated:
The Biden Administration’s failed attempt to rewrite Title IX was an unlawful abuse of regulatory power and an egregious slight to women and girls. Under the Trump Administration, the Education Department will champion equal opportunity for all Americans, including women and girls, by protecting their right to safe and separate facilities and activities in schools, colleges, and universities.[7]
Schools, colleges, and universities, and other recipients of federal financial assistance that are subject to Title IX will need to review and revise their policies, procedures, and practices to ensure compliance with the 2020 Title IX Rule to prepare for potential enforcement action by OCR or the U.S. Department of Justice. Schools, colleges, and universities may also want to consider providing training and education to staff, faculty, and students on the 2020 Title IX requirements.
[1] Tennessee v. Cardona, available at: https://storage.courtlistener.com/recap/gov.uscourts.kyed.104801/gov.uscourts.kyed.104801.143.0_1.pdf.
[2] U.S. Dept of Educ., U.S. Dept of Educ. To Enforce 2020 Title IX Rule Protecting Women, Jan. 31, 2025, available at: https://www.ed.gov/about/news/press-release/us-department-of-education-enforce-2020-title-ix-rule-protecting-women#:~:text=The%20department%20will%20return%20to,students%20during%20Title%20IX%20proceedings.
[3] Id.
[4] Johanna Alonso, Department of Education Reverts to Trump’s Title IX Rule, Feb. 3, 2025, available at: https://www.insidehighered.com/news/government/politics-elections/2025/02/03/department-education-reverts-trumps-title-ix-rule.
[5] Katherine Knott, Confusion Follows Trump Order on Sex and Gender, Jan. 24, 2025, available at: https://www.insidehighered.com/news/government/politics-elections/2025/01/24/trumps-sex-and-gender-order-could-create-risk.
[6] Johanna Alonso, Department of Education Reverts to Trump’s Title IX Rule, Feb. 3, 2025, available at: https://www.insidehighered.com/news/government/politics-elections/2025/02/03/department-education-reverts-trumps-title-ix-rule.
[7] Dear Colleague Letter, Jan. 31, 2025, available at: https://www.ed.gov/media/document/title-ix-enforcement-directive-dcl