Back to the Future: What a Recent Vacatur, Executive Order, and Dear Colleague Letter Mean for Title IX Compliance

Newsletter

Within the last month, three developments have rocked the Title IX world: the Eastern District of Kentucky’s decision in State of Tennessee v. Cardona, President Trump’s Executive Order restricting the federal definition of “sex”, and the Department of Education’s Dear Colleague Letter reinstituting the 2020 Title IX regulations. Colleges and universities must take note of these developments and implement necessary changes to their policies and procedures to meet their Title IX compliance obligations.

State of Tennessee v. Cardona Vacatur

On January 9, 2025, the U.S. District Court for the Eastern District of Kentucky issued a ruling vacating the Biden Administration’s 2024 Title IX regulations in their entirety. The Cardona court cited three reasons why the entire 2024 Title IX Final Rule was unlawful:

  1. Discrimination based on sex includes only discrimination based on being a “male or female” and does not include discrimination based on gender identity.
  2. “The Final Rule’s definitions of sex discrimination and sex-based harassment, combined with the de minimis harm standard, require Title IX recipients, including teachers, to use names and pronouns associated with a student’s asserted gender identity.” Such a requirement is “vague and overbroad” and a violation of the Spending Clause and the First Amendment of the Constitution.
  3. The Final Rule is “arbitrary and capricious.” Most notably, the Final Rule’s reliance on the U.S. Supreme Court ruling in Bostock v. Clayton County, a Title VII case, “is a very shaky place for the Department to hang its hat” because Bostock only addressed discrimination in the workplace, not in bathrooms and locker rooms.

Prior to the court’s vacatur of the 2024 Title IX final rule, injunctions enjoining implementation and enforcement of the new regulations had been issued in approximately 26 states and impacted over 600 institutions of higher education. Those educational institutions not impacted by the prior injunctions scrambled to revise their Title IX policies and procedures to conform with 2024 Title IX Final Rule in addition to corresponding state and local statutes. The Cardona ruling has direct and immediate implications for those educational institutions.

Executive Order Restricting the Definition of “Sex”

In Bostock, the U.S. Supreme Court held that Title VII’s prohibition against workplace discrimination based on sex included sexual orientation and gender identity. Shortly thereafter, the first Trump Administration issued guidance stating that the holding of Bostock did not apply to Title IX. The Biden Administration reversed that guidance in June 2021 and called for the application of Bostock to Title IX. In fact, the Bostock decision was key to the Biden Administration’s 2024 Title IX regulations, which clarified that the law also prohibits discrimination based on sexual orientation or gender identity.

Soon after taking office, on January 20, 2025, President Trump issued an Executive Order (“EO”) entitled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” This EO instructed federal agencies to define “sex” as referring to an individual’s “immutable biological classification as either male or female”—and not as encompassing the concept of “gender identity.”

The EO further instructed federal agencies—including the Department of Education—to rescind all guidance documents inconsistent with the foregoing definition of sex and specifically identified 11 Department of Education guidance documents, including “2024 Title IX Regulations: Points for Implementation” (July 2024) and “Enforcement of Title IX of the Education Amendments of 1972 With Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County” (June 22, 2021). The EO also directed the Attorney General to issue immediate guidance indicating that the prior interpretation of Bostock with respect to Title IX is “legally untenable.”

Dear Colleague Letter

In light of the foregoing, it was not a surprise when, on January 31, 2025, the Department of Education’s Office for Civil Rights issued a Dear Colleague Letter clarifying that—effective immediately—it will be enforcing Title IX under the provisions of the 2020 Title IX regulations. Citing both the Cardona decision and President Trump’s Defending Women EO, the Letter states that “the binding regulatory framework for Title IX enforcement includes the principles and provisions of the 2020 Title IX Rule and the longstanding Title IX regulations outlined in 34 C.F.R. 106 et seq., but excludes the vacated 2024 Title IX Rule.” In other words—the 2024 regulations are out, and the 2020 regulations are back in. Notably, the Letter advises colleges and universities that open investigations initiated under the 2024 regulations should be “immediately reoriented” to comport fully with the requirements of the 2020 regulations.

Practical Takeaways

The Department of Education’s position is that the 2020 Title IX regulations are once again controlling. Therefore, colleges and universities should immediately review and revise their Title IX policies and procedures to comply with: (1) the 2020 regulations, (2) any binding federal case law interpreting those regulations; and (3) controlling state law. These revisions will likely include changes to key definitions, reinstatement of live Title IX hearings, prohibition against the “single-investigator” model, and reclassification of mandatory reporters. Colleges and universities should communicate policy and procedure changes to their campus communities and provide appropriate training to staff and faculty.

Colleges and universities should also examine open complaints to determine whether they still fall within the purview of Title IX as interpreted by applicable law, and if not determine whether conduct alleged should be investigated under a different college or university policy. For example, if an open complaint raised potential sexual harassment in a college or university’s study abroad program that occurred outside of the United States, that complaint now should not be investigated as a Title IX complaint, but could possibly be investigated under a college or university’s code of conduct.

Quarles is committed to working with colleges and universities to navigate the time travel of Title IX compliance. For further information, please contact your local Quarles attorney or:

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