When President Donald Trump last week signed an executive order meant to keep transgender athletes out of girls鈥� and women鈥檚 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.
鈥淲e鈥檙e thrilled with this,鈥� 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. 鈥淚 have a 7-year-old who plays softball, and it was just great to be with her at the White House today.鈥�
Hermann鈥檚 group, a conservative legal organization based in Roswell, Ga., had sued over the Biden administration鈥檚 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鈥檚 executive orders on these topics, which besides the athletics action include an order declaring that the federal government will only recognize an individual鈥檚 sex assigned at birth, and and inhibit student gender transitions.
鈥淚t鈥檚 another step toward restoring biological reality to our schools and colleges,鈥� said Hermann.
Those who are supportive of transgender rights take a different view.
The athletics executive order was 鈥渁nother attempt to bully trans people, including children, and misuse the government to enforce sexist gender roles,鈥� Fatima Goss Graves, the president and CEO of the National Women鈥檚 Law Center, a Washington-based group that promotes 鈥済ender justice,鈥� said in a statement. 鈥淧resident Trump鈥檚 actions are cruel, blatant attempts to eviscerate safe, affirming, and equitable schools, a right that every student deserves, including transgender youth.鈥�
Trump鈥檚 executive order on women鈥檚 sports spur immediate responses, but no lawsuits鈥攜et
In contrast to the legal response to some of Trump鈥檚 other early executive orders, there have been no lawsuits immediately filed against the athletics order.
The says 鈥渋t is the policy of the United States to rescind all funds from educational programs that deprive women and girls of fair athletic opportunities鈥� and 鈥渢o oppose male competitive participation in women鈥檚 sports more broadly, as a matter of safety, fairness, dignity, and truth.鈥�
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鈥檚 action, the National Collegiate Athletic Association changed its policies to limit competition in women鈥檚 sports to students assigned female at birth.
鈥淧resident Trump鈥檚 order provides a clear, national standard,鈥� 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.
鈥淭he 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,鈥� said a statement from Executive Director Craig Anderson. 鈥淲e will await further guidance from government representatives as this fluid situation unfolds at the state and national level.鈥�
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 鈥渉ow quickly some people reacted to the executive order by changing things.鈥�
Busch has written extensively about Title IX and argues that the term 鈥渟ex鈥� 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鈥檚 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 鈥渇or the general welfare.鈥�
The Biden regulation 鈥渋mposes conditions on the states to which they did not agree,鈥� 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 鈥渟pending power functions in the nature of a contract鈥斺�榠n return for federal funds, the states agree to comply with federally imposed conditions,鈥欌�� 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鈥檚 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鈥檚 and girls鈥� athletics.
Those come from , , and . The Arizona and Idaho cases involve legal challenges that are based on the 14th Amendment鈥檚 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 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鈥檚 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鈥檚 Title IX regulation and welcomed Trump鈥檚 executive order on athletics, said last week that 鈥渋t remains necessary for the Supreme Court to weigh in鈥� on the controversial issue.
