When President Donald Trump last week signed an executive order meant to keep transgender athletes out of girls’ and women’s sports, representatives of groups that had sued the Biden administration over its broad interpretation of Title IX as protecting LGBTQ+ students were at the White House ceremony to cheer on Trump.
“We’re thrilled with this,” Kimberly S. Hermann, the executive director of the Southeastern Legal Foundation, said in an interview after the Feb. 5 ceremony in which Trump was flanked by young female athletes. “I have a 7-year-old who plays softball, and it was just great to be with her at the White House today.”
Hermann’s group, a conservative legal organization based in Roswell, Ga., had sued over the Biden administration’s interpretation of Title IX that called for schools receiving federal funds to protect transgender students from discrimination. The broad regulation did not specifically cover participation by transgender athletes, which was the subject of a separate proposed rule that was never finalized.
Groups and state leaders aligned with Trump have welcomed several of the new president’s executive orders on these topics, which besides the athletics action include an order declaring that the federal government will only recognize an individual’s sex assigned at birth, and another that aims to combat “gender ideology” and inhibit student gender transitions.
“It’s another step toward restoring biological reality to our schools and colleges,” said Hermann.
Those who are supportive of transgender rights take a different view.
The athletics executive order was “another attempt to bully trans people, including children, and misuse the government to enforce sexist gender roles,” Fatima Goss Graves, the president and CEO of the National Women’s Law Center, a Washington-based group that promotes “gender justice,” said in a statement. “President Trump’s actions are cruel, blatant attempts to eviscerate safe, affirming, and equitable schools, a right that every student deserves, including transgender youth.”
Trump’s executive order on women’s sports spur immediate responses, but no lawsuits—yet
In contrast to the legal response to some of Trump’s other early executive orders, there have been no lawsuits immediately filed against the athletics order.
The order says “it is the policy of the United States to rescind all funds from educational programs that deprive women and girls of fair athletic opportunities” and “to oppose male competitive participation in women’s sports more broadly, as a matter of safety, fairness, dignity, and truth.”
The order contains specific directives for the Department of Justice, the U.S. secretary of education, and other agencies and officials to carry out those goals. Already, the U.S. Department of Education has announced investigations into two universities, the University of Pennsylvania and San Jose State University, and one state high school sports governing body, the Massachusetts Interscholastic Athletic Association, over potential Title IX violations.
But the biggest short-term impact of the order has been a sort of bully pulpit effect. A day after the president’s action, the National Collegiate Athletic Association changed its policies to limit competition in women’s sports to students assigned female at birth.
“President Trump’s order provides a clear, national standard,” NCAA President Charlie Baker said in a statement.
The Virginia High School League, which regulates interscholastic sports in that state, did the same thing this week, changing its policies to bar transgender girls from female sports.
Meanwhile, at least one state high school sports governing body has declined to immediately alter its policy that allows transgender girls to participate.
“The Illinois High School Association (IHSA) developed its Transgender Policy in 2011 and has continued to adapt its policy based on guidance from medical experts, as well as state law,” said a statement from Executive Director Craig Anderson. “We will await further guidance from government representatives as this fluid situation unfolds at the state and national level.”
Elizabeth Kaufer Busch, a professor and co-director of the Center for American Studies at Christopher Newport University in Newport News, Va., said in an interview that she was surprised “how quickly some people reacted to the executive order by changing things.”
Busch has written extensively about Title IX and argues that the term “sex” in Title IX means biological sex and that the only legitimate way to compel schools to permit transgender athletes to play on the team of their choice would be by congressional amendment.
However she thinks executive orders may not be the best way for the administration to govern on such a broad topic, and the order and any related regulations stemming from it will likely be challenged in court.
When states and other groups challenged Biden’s Title IX regulation, one of the claims they raised in the multiple lawsuits filed was based on the spending clause in Article I of the U.S. Constitution, which gives Congress the power to tax and spend “for the general welfare.”
The Biden regulation “imposes conditions on the states to which they did not agree,” said the lawsuit against the 2024 Title IX rule filed by Southeastern Legal Foundation.
In January, the federal district judge in Kentucky who invalidated the Biden Title IX regulation ruled in part on the spending clause.
The “spending power functions in the nature of a contract—‘in return for federal funds, the states agree to comply with federally imposed conditions,’” Judge Danny C. Reeves said, quoting a Supreme Court decision.
With the situation now flipped and the Trump administration imposing new conditions for the receipt of federal funds under Title IX, it may only be a matter of time before states and school districts more supportive of transgender rights sue under the same theory used by those who opposed the Biden regulation.
Athletics cases pending in the U.S. Supreme Court could shape Trump’s trans athlete policy
The issue of limits on transgender participation in sports is also playing out in other legal arenas. The U.S. Supreme Court has before it three pending appeals of lower-court decisions blocking state laws that bar transgender students from women’s and girls’ athletics.
Those come from Arizona, Idaho, and West Virginia. The Arizona and Idaho cases involve legal challenges that are based on the 14th Amendment’s equal protection clause. The West Virginia case is based on both equal protection and Title IX.
The Supreme Court may be holding those appeals pending its decision in United States v. Skrmetti, involving an equal-protection challenge to a Tennessee law that bars puberty blockers and hormone treatments for transgender minors. (The Trump administration recently filed a statement with the high court that it was reversing the Biden’s administration view that the Tennessee law was unconstitutional, but it said the court should go ahead and decide the issue anyway.)
Depending on how it rules in the medical care case, where oral argument suggested that the Tennessee law was likely to be upheld, the high court could send the athletics cases back to lower courts to weigh the effects of any broad pronouncements by this justices in this area, or it could take up one or more of those athletics cases.
Kristen Waggoner, the president of Alliance Defending Freedom, another group that opposed Biden’s Title IX regulation and welcomed Trump’s executive order on athletics, said last week that “it remains necessary for the Supreme Court to weigh in” on the controversial issue.
