Title IX of the Education Amendments of 1972 prohibits sex-based discrimination in federally funded educational programs. In 2021, President Joe Biden manufactured ambiguity around Title IX’s interpretation when he rewrote it away from its original intent.

Consequently, by prioritizing gender identity in school sports, female student-athletes have been deprived of fair competition free from the intrusion of biologically stronger males, denied equal athletic opportunities, and exposed to heightened risks of physical injury.

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Biden’s rewrite, muddying the meaning of Title IX’s text, has had a ripple effect that has torn through the courts and state legislatures. Now, the Trump administration, Republican state lawmakers, and women’s sports advocates are trying to correct the damage done.

Title IX timeline

The proverbial game of ping pong harkens back to former President Barack Obama, whose administration treated gender identity as sex for the purpose of enforcing Title IX protections. Former Education Secretary Betsy DeVos, during President Donald Trump’s first term, stepped in to withdraw that guidance and treat sex as it’s always been beforehand: based on biology.

Biden redefined “sex” to include sexual orientation and gender identity or expression, or SOGIE, in an executive order expanding Title IX’s coverage, though he cited Bostock v. Clayton County, a 2020 Supreme Court opinion concerning workplace discrimination under Title VII. That ruling reasoned that “homosexuality and transgender status are inextricably bound up with sex.”

Fast forward to 2025, Trump issued directives rescinding the Biden-era revision of Title IX’s meaning and recognizing the biological, immutable differences between the two sexes.

Notably, the Biden administration lost 11 times in federal court to lawsuits challenging its Title IX rule. In August 2024, the Supreme Court unanimously affirmed preliminary injunctions pausing the rule’s effect amid litigation. Soon after, the U.S. Court of Appeals for the 11th Circuit decided that the plaintiffs proved “a substantial likelihood that they will prevail on the merits” of their case.

“Clearly federal judges did not believe this either, but I don’t think the Biden administration’s interpretation of Title IX ever held legal water,” Defending Education’s vice president and legal fellow Sarah Parshall Perry told the Washington Examiner.

Jonathan Butcher, an education policy expert at the Heritage Foundation, noted that “it’s only a matter of time before the Biden rewrite itself becomes undone.”

State-level transgender laws

Over the past few years, several states have enacted their own pro-transgender laws in line with the Biden rewrite.

Michigan codified similar expansions in a 2023 amendment to the Elliott-Larsen Civil Rights Act, a 1976 law prohibiting discrimination based on sex, race, religion, and other characteristics. Senate Bill 4, unlike Biden’s SOGIE shoehorning, classified gender identity, gender expression, and sexual orientation as separate protected categories.

However, in light of Trump’s presidential actions, state House Republicans have since passed two transgender education bills, companion measures H.B. 4066 and H.B. 4469, that would protect single-sex sports teams and base a student’s eligibility to participate in school athletics on biological sex, respectively.

“This legislation would update the law to help ensure that Michigan is compliant with federal directives surrounding Title IX and gives local school districts the clarity and authority to enforce policies that protect girls’ athletics,” H.B. 4469’s sponsor, GOP state Rep. Rylee Linting, said during debate on the state House floor.

Both bills are awaiting approval in the state Senate, where Democrats hold a majority.

Meanwhile, Maine and California, both engaged in legal fights with the Trump administration over their transgender athletic practices, have leveraged local laws to fend off federal enforcement.

Perry said Maine, in particular, will serve as the test case for the rest of the nation’s recalcitrant governors.

Four years ago, Maine amended the Human Rights Act of 1971, which was first updated in 2005 to include gender identity under the umbrella of sexual orientation, establishing gender identity as a distinctly defined class granted civil rights protection in educational and extracurricular programming.

In April, after Gov. Janet Mills (D-ME) publicly bucked Trump on Title IX at a National Governors Association event, going so far as to say, “See you in court,” the U.S. Justice Department brought a lawsuit accusing the state’s Education Department of “openly and defiantly flouting federal anti-discrimination law.”

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In response, Mills claimed that the matter centers on states’ rights and “whether a President can force compliance with his will” when federal mandates are at odds with state statutes.

Perry, formerly senior counsel to the U.S. Education Department’s civil rights office, said states cannot successfully claim federal overreach because federal law preempts state law when the latter is contradictory and frustrates Congress’s intent in enacting the federal law in the first place.

Under the Constitution’s supremacy clause, federal law is the “supreme Law of the Land,” overriding conflicting state law. Title IX is a spending clause law, meaning that it passed pursuant to congressional power of authority over budgets and federal spending.

“I find it interesting that a lot of governors now, like Janet Mills and Gavin Newsom, are suddenly federalists, whereas before they would have been all too happy to follow federal law once it was interpreted in their very liberal, very progressive favor,” Perry said.

A similar situation is brewing in California.

Earlier this month, Assistant U.S. Attorney General Harmeet Dhillon, head of the DOJ’s civil rights division, sent a letter to K-12 school districts across California warning that their adherence to a California Interscholastic Federation policy, Bylaw 300.D, allowing biological boys who identify as female to compete in female-only sports violates the Constitution’s equal protection clause. Dhillon ordered all California public schools to certify in writing that they will break away from the CIF’s rules.

Following the threat, California filed a “pre-enforcement” complaint to prevent the Trump administration from withholding “large-scale” federal public school funding as a penalty, as seen in Maine. In the state’s 34-page lawsuit, plaintiffs say federal officials have “no right to make such a demand,” and California Superintendent of Public Instruction Tony Thurmond told Dhillon that the CIF’s policy simply “reiterates California law.”

California, long before Biden’s overhaul of Title IX, already had a law allowing transgender students to participate in school programs and use bathrooms of the gender with which they identify.

The School Success and Opportunity Act, Assembly Bill 1266, was signed into law by then-Gov. Jerry Brown in 2013, permitting California students to participate in sex-segregated school activities and access facilities “consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records,” under Section 221.5(f) of the state’s Education Code.

Aside from the latest litigation, A.B. 1266 is facing legal scrutiny on multiple fronts. The Justice Department launched an investigation into whether A.B. 1266 violates Title IX, and a federal lawsuit filed on behalf of female athletes in California is seeking injunctive relief stopping schools from implementing A.B. 1266.

Demanding that Title IX takes precedence is well within the federal government’s purview, Perry said.

A state does not have to accept federal funding for education, but once it does, that transaction works in the nature of a contract, Perry said. Those beneficiaries, such as states and education associations, are all then duty-bound to follow federal law because of the contract into which they have essentially entered with the federal government.

In fact, the federal regulations implementing Title IX explicitly stipulate that funding can be suspended on condition of compliance. Every year, recipients certify via an assurance of compliance that they will follow federal civil rights law if they take federal money. The agreements apply to Title IV, Title VI, and so on, not just for abiding by Title IX.

“They definitely have that authority,” Perry said of federal officials cutting off federal funding. “And while it has never been wielded before to withhold federal funds, this may be the administration to do just that.”

Legal remedies

To achieve permanence on the issue, Perry said it will take either the Supreme Court’s final determination that Title IX’s sex standard means biologically male and female, a landmark decision which may come in the Maine case, or federal legislation preventing more modification of Title IX.

Perry said the best approach to stop this swinging pendulum rests with Congress passing legislation that prevents further regulatory back-and-forth whiplash.

Ideological conflict over Title IX is also arising at the local level between individual institutions and state governments.

Butcher, chairman of the South Carolina Advisory Committee to the U.S. Commission on Civil Rights, said some Republican-led states are dealing with school districts in Democratic-majority jurisdictions that have their own policies running counter to state Title IX guidelines.

School systems such as that of Loudoun County, Virginia, have continued their discriminatory practices despite Trump restoring the definition of sex-based discrimination.

Loudoun County Public Schools is weaponizing Title IX to bring sexual harassment proceedings against three 15-year-old boys who privately objected to a biologically female classmate using their locker room under LCPS Policy 8040, which lets students access school facilities corresponding with their “consistently asserted gender identity.” The transgender student illicitly filmed the boys, some of whom were changing, while they discussed their discomfort, but the boys are the ones accused of sexual harassment.

“What we’re seeing out of Loudoun County is a school district that has gone completely rogue on this,” Perry said.

Gov. Glenn Youngkin (R-VA) issued “model policies,” a guiding document on transgender-related issues, for the state’s public schools to follow. Still, some school administrations, such as LCPS, are ignoring the advisory, arguing that they solely retain discretion on adopting policy.

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Butcher said the binding nature of the guidance, whether these policies are enforceable through a legal mechanism, remains a question for the courts.

One avenue to resolve this conflict is for Republican-led state legislatures to specify their stances in the state statute, Butcher said, such as upholding the biological sex standard or broadening the scope of parental rights.