Boston Lawyer BlogWhat is the Current Status of Title IX and its Enforcement?
In the last month, actions by the courts, the President, and Congress have significantly impacted and may further change how Title IX is enforced across the country.
Title IX: Background and Enforcement
Title IX is a federal law prohibiting sex discrimination in education. It is one of the shortest laws on the books, with the operative provision stating: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Laws like this can be enforced in two ways: through the courts and through administrative agencies. Individuals have a right to bring lawsuits under Title IX in court, where it is the job of the court to interpret what the law means. In addition, federal agencies has enforcement powers to investigate and address violations of federal law. For Title IX, that agency enforcement power rests with the U.S. Department of Education and the U.S. Department of Justice. People whose right to be free from discrimination in education have been violated can file complaints with those agencies, which can then investigate the educational institutions and impose corrective action, including the withholding of federal funds. The U.S. Department of Education issues regulations interpreting the laws it enforces and explaining how it will apply those laws when it engages in enforcement action. In 2020 the first Trump administration issued regulations overhauling Title IX enforcement; in 2024 the Biden administration issued a new set of regulations that was immediately challenged in federal courts in various red states.
Under longstanding Supreme Court precedent, courts were supposed to defer to agency interpretations of the laws they enforce when applying those laws, under a doctrine called Chevron deference. The reasoning behind this doctrine was that the experts employed by agencies were better suited to hash out the details of how a law should work than courts of general jurisdiction. But just last summer the Supreme Court overruled Chevron, holding that courts—not federal agencies—should “decide legal questions by applying their own judgments.” Presumably in cases brought under Title IX going forward, we will see even more differing interpretations of what this law means as courts around the country exercise their own judgment without deferring to agency regulations.
The Last Month: Overturning of Biden’s Title IX Regulations
On January 9, 2025 a federal district court in the Eastern District of Kentucky vacated the Biden administration’s Title IX regulations, ruling that the regulations exceeded the Department of Education’s rulemaking authority, violated the First Amendment, and resulted from arbitrary and capricious agency action. As we have previously written, the Department released the regulations in April 2024 and immediately faced legal challenges focused on the interpretation of the term “[d]iscrimination on the basis of sex” in Title IX to include discrimination based on gender identity, with mixed results. The Kentucky decision found that the Department lacked authority to interpret Title IX in that manner and invalidated the regulations in their entirety.
The Kentucky court’s reasoning for vacating the regulations largely tracks its June 2024 decision enjoining them (a total of six courts across the country enjoined the regulations, blocking enforcement in twenty-six states). The court again rejected the Department’s argument that the Supreme Court’s holding in Bostock v. Clayton County—that discrimination because of sex in Title VII includes sexual orientation and gender identity discrimination—applies in the Title IX context. It found that the regulations violated the First Amendment by compelling speech, and that the Department’s reasons for its interpretation of Title IX were inadequate, rendering the regulations arbitrary and capricious.
On January 20, 2025, President Trump issued an Executive Order: “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” That executive order states that it is the policy of the federal government to recognize two sexes, male and female, and sets forth definitions of sex, “gender ideology,” and “gender identity” that the executive branch will use. The Executive Order states that “Each agency and all Federal employees shall enforce laws governing sex-based rights, protections, opportunities, and accommodations to protect men and women as biologically distinct sexes.” The executive order also states that the Biden administration’s application of Bostock v. Clayton County to Title IX was legally incorrect.
On January 31, 2025, the U.S. Department of Education issued a Dear Colleague Letter on Title IX enforcement that was riddled with factually incorrect information about the state of legal challenges to the Biden regulations. The letter stated that the Department of Education Office for Civil Rights (OCR) will enforce Title IX under the 2020 Title IX Rule, and will apply that rule to cases currently pending in its offices. The letter cited the Kentucky court decision and the president’s executive order as reasons why the 2024 regulations were incorrect, and falsely stated that every court to consider challenges to the 2024 regulations found them “unlawful.” (As we discussed last year, a Trump-appointed federal judge in Alabama rejected that state’s challenge to the regulations). In a bold statement about the President’s role in interpreting the Constitution, the Dear Colleague Letter stated, “As a constitutional matter, the President’s interpretation of the law governs because he alone controls and supervises subordinate officers who exercise discretionary executive power on his behalf. That unified control extends to ED and OCR; therefore, Title IX must be enforced consistent with President Trump’s order.”
One business day later, on February 4, 2025 the U.S. Department of Education deleted the January 31, 2025 letter from its website and replaced it with a new version, correcting the factual misstatements, toning down the rhetoric, and eliminating the statement about the President’s authority with respect to Constitutional interpretation. The main substance remains the same: the Department of Education will revert to the 2020 regulations for Title IX enforcement.
What’s Next?
If Trump and Republicans in Congress have their way, the ongoing battle over the Title IX regulations may become moot. On January 31, 2025 Kentucky congressman Thomas Massie introduced a bill to abolish the Department of Education (he had previously introduced the same bill in 2017, with no success). The text of the bill reads “The Department of Education shall terminate on December 31, 2026.” According to news reports, Trump is drafting an executive order to abolish the Department (something that he cannot unilaterally do via executive order).
Reminder: Title IX, State Laws, and School Policies Still Apply
While the President and executive agencies are working overtime to return to the 2020 Title IX regulations, and Congress might dismantle the federal apparatus for Title IX enforcement, it is important to remember that the executive branch is not the source of Title IX rights, and cannot single-handedly take away statutory rights. Regardless of what is happening at the Department of Education the following remains true:
- Title IX prohibits sex-based discrimination in education institutions that receive federal funds, and it is up to the courts to interpret that law;
- Many states (though not Massachusetts—as explained here) have state laws prohibiting discrimination in schools that students can use to enforce their rights;
- Public institutions are required by federal and state constitutions to provide equal treatment to their students;
- Schools, colleges, and universities have their own handbooks and policies that give students rights to fair and equal treatment; students can enforce those rights against their schools in breach of contract claims.
If you or someone you know is facing discrimination or harassment at school or is involved in a Title IX proceeding, fill out our online intake form or call us at (617) 742-6020 to be connected with one of our lawyers.
