As President-elect Donald Trump prepares to return to the White House, the K-12 sector is bracing for change in one of the Biden administration's key policy initiatives — its interpretation and application of Title IX, the federal anti-sex discrimination statute.
Trump has promised to undo the Biden administration’s rule interpreting the law’s protections to include LGBTQ+ students and staff. “It’ll be terminated,” he said of the Title IX regulation implemented by the Biden administration just this past August, speaking on a conservative Philadelphia radio talk show in May.
Trump's win and its implications for schools' Title IX policies and practices have been met with mixed reactions.
On one hand, civil rights advocates and Title IX experts say a Trump presidency threatens LGBTQ+ protections, enshrined for the first time with the Biden administration's rulemaking.
Trump's victory triggered "a profound sense of loss and concern for the future," said Melanie Willingham-Jaggers, executive director of K-12 LGTBQ+ advocacy organization GLSEN.
"Our young people could face increased discrimination, reduced access to safe spaces, and diminished legal recognition, particularly for transgender students," Willingham-Jaggers added.
On the other side of the debate, conservative women’s rights advocates who see transgender student inclusion as a violation of Title IX are celebrating a Trump presidency. Another four years of Trump will "improve our communities, our schools, our safety and security, and our overall well-being," said Julie Gunlock, director of the Independent Women's Network, a private online forum for conservative women and male advocates, in a statement following the elections.
What will happen to the 2024 Title IX rule?
The next administration could undo the Biden administration's 2024 rule in a number of ways, including rescinding it altogether and reverting to the 2020 one, said Brett Sokolow, president of the Association of Title IX Administrators.
"We're informing all our members that they should expect sometime in 2025 that the '24 regs will fall somehow," said Sokolow.
For schools in the 26 states with injunctions pausing the 2024 rule, a nationwide return to the 2020 regulations means policies in those schools would continue as they are now.
Schools that recently implemented Biden's 2024 rule, however, would have to shift their practices once again.
If the new administration chooses to push an entirely new rule through rather than bringing back the 2020 one, it wouldn't be finalized until the end of 2026 or beginning of 2027 at the earliest, said Sokolow.
What would a return to the 2020 rule look like?
The 2020 Title IX rule differs from the 2024 version in various ways — the most controversial being whether LGTBQ+ students are protected by the anti-sex discrimination statute.
Under the 2024 rule, "sex-based harassment" includes harassment based on gender and sexuality, meaning issues such as repeated misgendering could be considered sex-based harassment in some circumstances.
The definition of sex-based harassment under the 2020 rule, however, is much narrower. And a Trump administration would likely leave pronouns and other transgender issues up to the states, Sokolow said.
In addition to LGBTQ+ issues, the 2020 and 2024 rules also differ in their Title IX reporting, complaint investigation, and resolution practices. The 2020 rule, for example, didn't allow a single-investigator model, which is when one school employee both investigates allegations of misconduct and determines the outcome of the investigation.
The 2024 rule, however, leaves schools to decide whether they adopt a single-investigator model. Compared to the 2020 rule, the most recent iteration also narrowed the pool of school employees who, when notified by a student of potential sexual harassment, trigger Title IX protections. Title IX experts say these tweaks under the 2024 rule were more practical for K-12 schools, which often have limited time and resources to address complaints.
However, advocates of the 2020 rule commend its increased protections for accused students.
"It is expected that the incoming administration will support its previous posture and strengthen due process protections for those accused of assault," according to Holland & Knight, a law firm with expertise in education litigation.
What happens with the Title IX athletics rule?
In addition to the broader Title IX rule that will likely change under the Trump administration, the issue of transgender student inclusion in sports will likely resurface as well.
The current Education Department proposed a rule in 2023 prohibiting blanket bans on transgender students' participation on sports teams aligning with their gender identities. That proposal also set a framework for schools to use when creating transgender athletics inclusion policies.
However, the Biden administration has repeatedly postponed finalizing that rule, and in July it ultimately pushed the rule’s publication to its long-term agenda.
That proposal is now dead in the water, said Sokolow.
"Although they could rush it out, it would now be subject to the Congressional Review Act, which just means that the next Congress would repeal it," said Sokolow. "So what's the point?"
The CRA allows Congress to overturn certain federal agency actions within 60 congressional days. And if those 60 days push past the end of the year, the review period could restart during the next Congress, which is set to be majority Republican — and most likely against transgender inclusion on athletics teams — in both the House and Senate.
Additionally, the trifecta of a Republican House, Senate and White House means the next Congress could not only overturn any athletic rule published by the current administration, but it could also pass a law on transgender inclusion in athletics.
"Which would be, I think, more effective than a regulation," said Sokolow. "I'm not sure exactly what strategy [the administration] will take on that, but I would expect some version of all of this to begin working its way through the system."
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