Updated: The U.S. Department of Energy withdrew its Title IX rule proposal on Sept. 10, according to a notice it published in the Federal Register.
The Trump administration is proposing a change to a long-standing rule that requires schools provide equal opportunities under Title IX for all students to participate in noncontact sports.
And it’s coming from the U.S. Department of Energy as the administration increasingly relies on other agencies to join the U.S. Department of Education in enforcing its interpretation of civil rights laws in schools.
Multiple agencies in recent months have joined the Education Department in launching civil rights investigations into schools, athletic associations, and state education departments to advance the president’s directives to bar transgender athletes from girls’ sports and eliminate diversity, equity, and inclusion programs at schools.
The proposed Title IX change was submitted alongside several others in the Federal Register last month. The regulations are slated to take effect July 15. Inside Higher Ed first reported on the group of proposed changes.
It would rescind a requirement that schools receiving money from the Energy Department allow students of both genders to try out for noncontact sports teams when the school doesn’t have both boys’ and girls’ teams. The change would affect all students, both cisgender and transgender—as the regulation currently ensures girls can try out for boys’ teams if there’s no equivalent available to them and vice versa.
The Title IX revision in particular would apply to schools—and it’s an example of the administration making an education rule change without the Education Department, which President Donald Trump wants to dissolve.
“I think it signals that other agencies are willing to take an enforcement role, perhaps even lead an enforcement role, when it comes to questions of gender identity and accommodations in schools where previously the Department of Education had been the primary agency for leading those inquiries and effectuating penalties or resolutions,” said Julia Martin, the legislative director for the Bruman Group, a law firm that represents school districts. “The other funds that agencies administer can be further leveraged in those discussions.”
In its reasoning, the Energy Department wrote that “such athletics rules ignore differences between the sexes which are grounded in fundamental and incontrovertible reality while also imposing a burden on local governments and small businesses who are in the best position to determine the needs of their community and constituents.”
The department also noted that the change aligns with Trump’s executive order threatening to pull federal funds from schools that let transgender athletes compete on girls’ teams.
The proposed change drew more than 21,000 comments in a feedback window that ended this week. The rule won’t go into effect in its current form if there are “significant adverse comments.”
For this change and others the Energy Department is using an unusual procedure, called direct final rulemaking, to avoid providing a formal comment period for members of the public to weigh in, which is required when agencies propose major regulations or major changes to them.
What the administration is trying to do isn’t legal, said Ron Levin, a professor who specializes in administrative law at Washington University in St. Louis who, along with other administrative law experts, submitted comments flagging concerns about the agency’s procedure.
For minor, noncontroversial changes, agencies can announce they’re adopting something different and ask for feedback if anyone is opposed, Levin said. But the Trump administration appears to be interpreting the ability to skip public comment “to mean that if it’s so clear that we’re right, it’s unnecessary to take comments to hear from anyone about whether we’re right,” Levin said.
Either the administration doesn’t know what the law requires, or it’s trying to blaze past it, he said.
“Either way, thumbs down from me,” Levin said.
Another one of the Energy Department changes would revoke a provision requiring that new construction it funds be accessible to people with disabilities. And a third would rescind a number of nondiscrimination provisions, including a requirement that recipients of department funding not run its programs in a way that might have discriminatory effects—a concept known as disparate impact—and another require that they provide information about their services in languages other than English when the intended population needs information in another language.
An Education Department spokesperson didn’t respond to a request for comment on whether that agency planned to propose comparable changes to its regulations.
The changes could affect school funding
The Title IX change would affect any schools that receive Energy Department funds—roughly 300 universities and 80 school districts, according to data from the agency. Meanwhile, the Education Department’s Title IX regulations retain the requirement that schools offer girls the chance to try out for noncontact sports when there’s no girls’ team and vice versa.
“There are a number of energy-efficiency grants that the Department of Energy administers, so we would likely see some changes to the terms and conditions of those awards, and they would look a little bit different from last year,” the Bruman Group’s Martin said.
The Energy Department change simply removes the equal participation requirement.
“But it doesn’t stop a school from still offering that,” Martin said. “It’s just no longer going to be a requirement in order to get the grant. So in that case, we wouldn’t necessarily expect a significant change.”
The move shows that the administration is implementing its policies on gender identity and its interpretation of Title IX across multiple agencies, Martin said.
It’s the first time Elizabeth Meyer, a professor of education policy at the University of Colorado-Boulder, has seen the Energy Department do any rulemaking for Title IX in the 20 years she’s studied the anti-sex-discrimination law and its intersection with schools.
“For young people to be constantly told by their government that they don’t matter and their government is not going to protect them is just devastating,” Meyer said.
The Association of Title IX Administrators, an organization that supports the implementation of the law in universities and schools, said in its submitted comments that the change would harm all athletes—not just transgender students.
“Regulations would be more likely to survive challenges in court ... if focused on actual harms, rather than speculative harms that could lead to banning an entire class of people who are trying to compete and have a right to do so,” wrote Brett Sokolow, the chairman of the association’s advisory board.
Trump’s administration has repeatedly focused on transgender student policies
The interpretation of Title IX has ping-ponged between Democratic presidents and Trump, with the Obama and Biden administrations aiming to expand protections for transgender and nonbinary students, and Trump swiftly rolling those ambitions back. President Joe Biden’s Education Department attempted to expand the regulations to outlaw categorical bans on transgender student participation in sports, but the agency dropped the effort in its final days so Trump couldn’t use the rule as a vehicle to fast-track his conflicting plans.
Trump’s administration has argued the presence of trans athletes on girls’ teams is a violation of Title IX—an interpretation of the law no court has endorsed, legal experts have said.
The landmark anti-sex-discrimination law, which was passed as an equalizer in sports, has long had a component dictating that schools can offer separate teams, but in the absence of that, they must provide the opportunity for the excluded gender to play on the existing team.
This proposed regulation change is one more example of how Trump’s policies have become “much more blatant” in undoing protections added by other administrations, Meyer said.
“There’s like 20 years of case law that shows that Title IX is meant to protect people from all forms of sex discrimination, including sex stereotyping,” she said.
