U.S. Department of Education’s Office for Civil Rights to Enforce Title IX under 2020 Rule, Which Excludes Gender Identity Protections

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The Department of Education through its Office of Civil Rights (“OCR”) has announced in a “Dear Colleague” letter that Title IX will be enforced under the provisions of the 2020 Title IX rule rather than the more recent 2024 Title IX Rule. There are two catalysts for this announcement: a ruling by the Eastern District of Kentucky and President Trump’s Executive Order.

The 2024 Rule had expanded the scope of Title IX’s protection in several respects. On January 9, 2025, the United States District Court for the Eastern District of Kentucky entered an order vacating the 2024 Title IX Rule[1], and prohibiting the Department of Education from enforcing the 2024 Rule in any jurisdiction. Prior to that decision, federal courts in other jurisdictions had enjoined the 2024 Rule, amounting to a prohibition against its enforcement in 26 states. Moreover, according to OCR, every court presented with a challenge to the 2024 Rule has indicated that it is unlawful.

On January 20, 2025, President Trump issued an Executive Order: “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”. This Executive Order directly contravenes the 2024 Rule’s expansive definition of conduct “on the basis of sex” by ordering all agencies and departments within the Executive Branch to “enforce all sex-protective laws to promote [the] reality” that there are “two sexes, male and female,” and that “[t]hese sexes are not changeable and are grounded in fundamental and incontrovertible reality.”

OCR announced that, in its view, the federal court’s decision expressed the proper textual and original meaning of Title IX. Accordingly, OCR does not recognize the expanded meaning of ‘on the basis of sex’ to include ‘gender identity’ as had been recognized in the 2024 Rule.  Likewise, the court rejected the 2024 Rule’s provision that discrimination on the basis of sex also includes discrimination on the basis of sex stereotypes, sex characteristics, and sexual orientation. Moreover, OCR recognizes the President’s interpretation of the law as governing, because he alone controls and supervises subordinate officers who exercise discretionary executive power on his behalf. The Education Department and OCR are subordinate offices of the Executive Branch; therefore, Title IX must be enforced consistent with the executive order.

In light of the federal court decisions and the executive order, 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 changes made by the vacated 2024 Rule. Accordingly, open Title IX investigations initiated under the 2024 Rule should be reoriented to comport fully with the requirements of the 2020 Rule.

It is essential to keep in mind that none of this affects the validity and applicability of similar provisions under Massachusetts law and school districts must continue to comply with those requirements.

The consequences of these changes are complicated. It is advisable that school districts confronted by issues falling under Title IX and under related Massachusetts provisions obtain legal advice. This includes decisions by school committees to amend and/or establish policies regarding these questions.

We are happy to advise school committees in these areas and in others.

This update is provided for informational purposes only and should not be considered legal advice.

[1] Tennessee v. Cardona (2025)