Last May, soon after the Biden administration announced its final Title IX regulation that for the first time said gender identity is covered by the law’s sex discrimination protections, former President Donald Trump vowed to nix it if he won re-election.
“We’re gonna end it on Day 1,” Trump told a conservative talk radio host in Philadelphia. “It’ll be terminated.”
In that same interview, Trump referred to documents that President Joe Biden had signed early in his administration to offer some protections to LGBTQ+ students and workers, saying, “That came down as an executive order. And we’re gonna change it—on Day 1 it’s gonna be changed.”
Trump, whether consciously or not, was sidestepping a key difference between the Biden executive orders and the final regulation that was finalized this year under Title IX of the Education Amendments of 1972. The federal statute prohibits discrimination based on sex in federally funded educational programs. The Biden regulation, which underwent a full notice-and-comment process, interprets the law to cover sexual orientation and gender identity. What it means practically is that public schools risk losing federal funding if they are found to discriminate against students and staff who are part of the LGBTQ+ community, but it’s the protections for transgender students that have sparked the biggest backlash.
Legal experts who both support and oppose the Biden Title IX regulation seem to agree that for all the changes Trump has planned when he takes office on Jan. 20, 2025, reversing the rule is not something he can do by executive order.
“Trump can’t just come in and get rid of the Title IX regulation,” Shiwali Patel, the director of safe and inclusive schools for the National Women’s Law Center, a Washington group that strongly supports the Biden Title IX rule, said in an interview.
Kim Herman, the executive director of the Southeastern Legal Foundation, a Roswell, Ga.-based organization that is among several conservative groups that are challenging the Title IX regulation in court, agreed.
“This is a rule that has been issued and formalized by the Department of Education, so it cannot be dismissed by an executive order,” Herman said in a Nov. 20 webinar about the Title IX rule, adding that the incoming president “can tell the Department of Education I want you to go get to work to make changes here.”
Conservative legal activists expect a ‘midnight rule’ on transgender sports participation from Biden administration
The change in presidential administrations is only one source of uncertainty for Title IX, its regulations, and for protections of transgender young people more generally.
Multiple court challenges to the Biden Title IX rule are proceeding, with the regulation blocked in 26 states and hundreds of schools in other states. After the U.S. Supreme Court in August declined the Biden administration’s request to trim back court injunctions and allow certain provisions of the regulation to take effect nationwide, lower courts are now delving into the merits of the legal challenges.
Meanwhile, some conservative legal activists say they expect the Biden administration to issue a final rule on athletics under Title IX before Trump takes over. That pending rule, which deals with issues such as the participation of transgender athletes in sports and is arguably the most controversial, has been on hold.
“We expect several midnight regulations from [the Biden] administration, and that could be one of them,” Matt Bowman, a lawyer with Alliance Defending Freedom, another group that is among those suing the Biden administration over the more comprehensive Title IX rule, said in an interview.
The Education Department did not respond to a request for comment about the pending athletics rule.
Others pointed to a federal law that may discourage such a last-minute policy change with the athletics rule. The Congressional Review Act requires federal agencies to submit new regulations to lawmakers, who may enact a resolution of disapproval. The new, more Republican Congress that takes office in January may be inclined to overturn a Title IX athletics rule published in the waning days of Biden’s term.
“At this point if it is finalized so late, it is vulnerable to the CRA,” said Patel of the National Women’s Law Center.
Separately, the Supreme Court is scheduled to take up arguments next month in United States v. Skrmetti, a major case about Tennessee’s restrictions on medical treatments for transgender minors. The case could have implications for education because it will decide what level of constitutional scrutiny courts apply to legal restrictions on transgender individuals, including such matters as restroom and locker room use at schools.
The Biden administration is opposed to the Tennessee law. Some legal experts have speculated the new Trump administration will try to switch the federal government’s positions in that case, though that may be tricky because the case will have been argued and will be in the hands of the justices before Trump takes office on Jan. 20.
D. John Sauer, who is President-elect Trump’s announced choice to become U.S. solicitor general, the government’s top advocate before the Supreme Court, is representing Arizona lawmakers in their defense of a state law that bars transgender girls and women from female sports.
“There is going to be ongoing litigation, ongoing battles [about constitutional tiers of scrutiny] in the transgender context,” Sauer said Nov. 16 during a panel discussion of the Federalist Society’s national convention in Washington.
Why undoing Biden’s Title IX regulation won’t be free of friction
As for the 2024 Title IX regulation, legal experts say they expect the new Trump administration will have taken lessons from some of the lumps the first Trump administration took when it tried to reverse certain policies of President Barack Obama.
“They have to comply with the Administrative Procedure Act,” said Patel, referring to a federal statute that has strict requirements for issuing—and withdrawing—federal regulations. “Even though [Trump] has acted as if he is above the law, his administration has to comply with the APA.”
At least twice during the first Trump administration, the Supreme Court struck down policies for failing to follow the APA. In a 2019 decision, the court held that the secretary of commerce abused his authority when he pushed to include a citizenship question on the 2020 U.S. Census, even though the court ruled such a question would not be improper.
In a 2020 case, the justices invalidated the administration’s attempt to end the Deferred Action for Child Arrivals immigration relief program, ruling that the secretary of homeland security’s actions were arbitrary and capricious under the APA.
Conservative advocates say they are pressing forward with their legal challenges to the new Title IX rule in part because court decisions striking down the rule (which would be a step beyond the current preliminary injunctions) would achieve their goal and would relieve the new Trump administration of the burden of having to undo the regulation administratively.
“That’s all the more reason we need to be successful in these court cases,” said Herman of the Southeastern Legal Foundation.
“If the cases are still pending, we’re not going anywhere,” said Bowman of Alliance Defending Freedom.
Southeastern Legal Foundation, along with the Defense of Freedom Institute and the Wisconsin Institute for Law and Liberty, held their nationwide webinar aimed at public school board members. They also put out a guidebook that promotes their viewpoint that the Title IX regulation embraces an incorrect view that gender identity is protected under the federal statute.
“I do believe the rule will go away, but what that looks like remains to be seen,” said Cory Brewer, the education counsel of the Wisconsin group. “I would expect the [new Trump] administration to approach these issues from kind of a traditional understanding of what Title IX meant, which is sex meaning male or female.”
Patel, of the National Women’s Law Center, said advocates on the left seemed resigned to the fact that the groundbreaking Biden Title IX regulation will be eliminated one way or another.
“It certainly doesn’t look good,” she said. “It’s really bleak and terrifying.”
She was most concerned with the overall tenor of the record of Trump and his allies on transgender issues, which included campaign ads critical of transgender rights.
“Transgender youth have been coming under attack for years by laws that dehumanize and marginalize them,” Patel said. “The federal government should be acting to protect them. But now, it seems, the [incoming administration] wants to join in on it and allow it.”
“But we’re here to fight back,” she said. “We’ll be fighting back.”
