Last month, the Departments of Justice (DOJ) and Education (ED) announced the creation of a joint Special Investigations Team (SIT) to streamline Title IX investigations. Formed on the heels of two executive orders (EOs) related to the application of Title IX to transgender female athletes and gender identity, the SIT is the latest example of the Trump administration reshaping Title IX enforcement activities on U.S. campuses and could portend a wave of new investigations of institutions of higher education (IHEs).
One of President Trump's first acts was to sign the EO "Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government." That EO recognized the government's official position that sex is binary and immutable, and that that viewpoint—along with strict biological definitions for "female" and "male"—would be interpreted and applied across the federal government. Shortly thereafter, Trump issued a second EO, "Keeping Men Out of Women's Sports," which sought to prohibit transgender women and girls from participating in female sports across all educational levels and rescind federal funding from educational programs that allow transgender women and girls to compete on female teams.
The SIT appears primed to put a robust enforcement mechanism in place for IHEs that operate in conflict with those EOs. Its purpose is to "ensure timely, consistent resolutions to protect students, and especially female athletes, from the pernicious effects of gender ideology in school programs and activities," citing a "staggering volume" of new Title IX complaints. The April announcement specifically called out IHEs that permit "men to compete in women's sports and use women's intimate facilities" as targets for potential enforcement activities.
A team of investigators and attorneys from across the government, but particularly drawn from the DOJ and ED, makes up the SIT. Those team members are tasked with streamlining investigations for Title IX complaints and ensuring that "the full power of the law" is used to remedy any violations of women's civil rights. While the SIT does not create any new departments or add to employee headcount, and instead allocates existing government resources to investigate Title IX cases, the administration contends it will be able to investigate claims more efficiently. According to the announcement, the ED Office for Civil Rights (OCR) investigators and attorneys, the DOJ Civil Rights Division attorneys, the ED Office of General Counsel attorneys, and the ED Student Privacy Policy Office staff and an FSA Enforcement investigator will be included as members.
While the ED's OCR has traditionally been responsible for fielding and investigating Title IX complaints before potentially referring a matter to the DOJ for further investigation, now DOJ attorneys are able to begin conducting and/or participating in investigations on their own, which may help the DOJ move through a backlog of cases more quickly, particularly after the ED laid off half of its OCR workforce. This interagency partnership is the second of its kind; the ED and DOJ are also leading a Task Force to Combat Anti-Semitism, and that task force has been moving rapidly to investigate what it calls pervasive antisemitism in educational programs and activities.
Non-compliance with Title IX has long threatened to lead to the loss of federal funding for schools and IHEs, though this punishment has seldom been used. It appears, at least early on, that the new Trump administration intends to use the power of the purse to force compliance with federal law and regulations. Title IX is no exception. For example, the ED referred the Maine Department of Education to the DOJ for further enforcement action and initiated an administrative proceeding to adjudicate termination of the state's federal K-12 funding after it refused to resolve its Title IX violations related to trans athletes in women's sports.
What remains uncertain is how IHEs that operate in states with robust anti-discrimination laws that explicitly protect transgender students and employees on the basis of sexual orientation and/or gender identity can effectively comply with the EOs in question. For example, states like New York and California make it illegal to deny a trans person access to a bathroom or locker room at school that conforms to their gender identity. Permitting this kind of activity would likely violate the EOs and potentially invite a Title IX complaint. Most recently, OCR determined that a prominent university was in violation of Title IX when it allowed trans women to participate in women's athletics and to use women's intimate facilities. Therefore, it's especially prudent now for IHEs to consult with their attorneys to navigate this legally complicated terrain.
Recommendations for Next Steps
The establishment of the SIT is yet another sign of the Trump administration's commitment to holding IHEs accountable for violations of Title IX, with a particular focus on the effects of what it views as "gender ideology." Accordingly, IHEs should take immediate steps to ensure their educational programs and activities remain in compliance with federal law.
- Review your Title IX procedures and policies. As we've already advised, IHEs must comply with the 2020 Final Rule after the 2024 Final Rule was vacated earlier this year when it sought to prohibit discrimination on the basis of gender identity. Ensure that you are adhering to the correct regulatory framework, accounting for the vast differences between the 2020 and 2024 Final Rules, and if you aren't, come into compliance immediately.
- Ensure all other materials are updated accordingly. IHEs should similarly review their publications, handbooks, and websites to ensure they reflect the substance of the 2020 Final Rule.
- Facilitate training. Faculty, staff, and students should be trained on the appropriate policies and procedures that comply with the 2020 Final Rule and how they apply to their work or studies.
- Monitor federal, state, and local laws affecting IHEs. Depending on the state in which your IHE operates, there may be conflict between federal, state, and local laws, particularly as they apply to transgender students' and employees' rights. Consult with counsel to ensure you are remaining in compliance with your obligations and how to address any conflicts.
As IHEs work to comply with the 2020 Final Rule, the authors of this article, or any lawyers in Venable's Labor and Employment Group, remain available to assist in navigating legal issues, policy review and implementation, and training related to Title IX.