U.S. Department of Education Confirms That It Will Enforce 2020 Title IX Rule

Quick Hits

• OCR will enforce Title IX protections under the 2020 Title IX Rule, not the 2024 Title IX Final Rule.
• The 2020 Title IX Rule provides procedural protections for complainants and respondents and requires supportive measures.
• The 2024 Title IX Final Rule, which was criticized for impermissibly expanding the definition of “sex” to include gender identity and other categories, has been invalidated by federal courts.

OCR’s new course for enforcement aligns with Executive Order 14168. The 2020 Title IX Rule, issued by the first Trump administration in May 2020, defines “sexual harassment,” provides procedural protections for complainants and respondents, requires the provision of supportive measures to complainants, and clarifies school-level reporting processes. The 2024 Title IX Final Rule, issued by the Biden administration in April 2024, expanded the definition of “on the basis of sex” to include gender identity, sex stereotypes, sex characteristics, and sexual orientation, and mandated that schools allow students and employees to access facilities, programs, and activities consistent with their self-identified gender.

The DCL follows a series of federal court decisions that vacated or enjoined the 2024 Title IX Final Rule, finding that it violated the plain text and original meaning of Title IX, which prohibits discrimination on the basis of sex in federally funded education programs and activities. The most recent decision, issued by the U.S. District Court for the Eastern District of Kentucky on January 9, 2025, stated that the 2024 Title IX Final Rule “turn[ed] Title IX on its head” by allowing males to identify as and thus become women and vice versa, and by requiring schools to treat such claims as valid. The court also noted that “every court presented with a challenge to the [2024 Title IX] Final Rule has indicated that it is unlawful.” On this note, the DCL states that OCR’s enforcement measures will interpret the word “sex” to mean “the objective, immutable characteristic of being born male or female.”

The DCL also aligns with President Trump’s Executive Order 14168, issued on January 20, 2025, after the president was sworn in for his second term of office. The executive order declares that “[i]t is the policy of the United States to recognize two sexes, male and female” that are “not changeable and are grounded in fundamental and incontrovertible reality.” It directs all executive agencies and departments to “enforce all sex-protective laws to promote this reality,” to use “clear and accurate language and policies that recognize women are biologically female, and men are biologically male,” and to refrain from using federal funds to “promote gender ideology,” a concept that the executive order defines as including a “spectrum of genders that are disconnected from one’s sex.”

The executive order also rescinds several previous executive orders, presidential memoranda, and agency guidance documents issued by the Biden administration that addressed sexual orientation and gender identity issues. The order instructs the attorney general to issue guidance to agencies to “correct” what it describes as the “misapplication of the Supreme Court’s decision in Bostock v. Clayton County, Georgia (2020) to sex-based distinctions in agency activities.” (In Bostock, the Supreme Court of the United States held that Title VII of the Civil Rights Act of 1964’s prohibition against unlawful sex discrimination encompassed discrimination based on sexual orientation or gender identity.)

The executive order authorizes agency action to “ensure that intimate spaces [such as prisons, shelters, and bathrooms] designated for women, girls, or females (or for men, boys, or males) are designated by sex and not identity.” It also prohibits the use of federal funds “for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.”

Next Steps

In light of OCR’s “Dear Colleague Letter” and President Trump’s Executive Order 14168, schools, colleges, universities, and other recipients of federal financial assistance may want to consider:

• reviewing and revising their policies, procedures, and practices to ensure compliance with the 2020 Title IX Rule and executive order; and
• providing training and education to staff, faculty, and students on the new requirements and changes related to Title IX enforcement.

Ogletree Deakins’ Higher Education Practice Group will continue to monitor developments and will provide updates on the Higher Education blog as additional information becomes available.

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