On February 5, 2025, President Trump issued an Executive Order (EO) entitled Keeping Men Out of Women’s Sports. This EO expresses strong disapproval of policies allowing transgender girls and women to participate on girls’ and women’s athletic teams. The EO challenges prior Department of Education interpretations of Title IX of the Education Amendments of 1972 (“Title IX”), the federal law that prohibits sex discrimination in education programs. The EO states that “it is the policy of the United States to rescind all funds from educational programs” that are not aligned with the principles of the EO, and then directs the United States Secretary of Education to promptly take a number of actions, including to:
- “prioritize Title IX enforcement actions against educational institutions (including athletic associations composed of or governed by such institutions) that deny female students an equal opportunity to participate in sports and athletic events by requiring them, in the women’s category, to compete with or against or to appear unclothed before males;”
- “take all appropriate action to affirmatively protect all-female athletic opportunities and all-female locker rooms and thereby provide the equal opportunity guaranteed by Title IX;” and
- “bring regulations and policy guidance into line with the Congress’ existing demand for ‘equal athletic opportunity for members of both sexes’ by clearly specifying and clarifying that women’s sports are reserved for women; and the resolution of pending litigation consistent with this policy.”
For Oregon K-12 school districts, this creates several challenges. The directives in this EO are in conflict with Oregon state law, which prohibits discrimination on the basis of gender identity and specifically states that school districts may not, on a discriminatory basis:
- “Treat one person differently from another in determining whether such person satisfies any requirement or condition for the provision of an aid, benefit, or service,”
- “Provide different aid, benefits, or services, or provide aids, benefits, or services in a different manner,”
- “Subject any person to separate or different rules of behavior, sanctions, or other treatment,”
- “Aid or perpetuate discrimination by joining or remaining a member of any agency or organization which discriminates in providing any aid, benefit, or service to students or employees,” or
- “Otherwise limit any person in the enjoyment of any right, privilege, advantage, or opportunity.”
OAR 581-021-0045. (Note that while the EO focuses only on the impact on female athletics, Oregon law protects transgender boys and nonbinary students, as well.)
Additionally, the Oregon School Activities Association (the “OSAA”), which regulates high school athletics, has a Gender Identity Participation Policy that generally provides that transgender, non-binary, and intersex students shall be allowed to participate on the team of their identified gender even if it does not align with their sex assigned at birth. We anticipate that the federal Office for Civil Rights (OCR) will promptly follow the EO by initiating investigations into school districts that allow transgender girls to participate on teams of their identified gender. OCR announced that it “stands proudly with President Trump’s action as we prioritize Title IX enforcement against educational institutions that refuse to give female athletes the Title IX protections they deserve.” Last week, the OCR initiated an investigation into a Denver Public School regarding the location of gender-neutral bathrooms, asserting that it “will examine whether the District discriminates against students on the basis of sex by installing multi-stall all-gender restrooms in District school facilities, in violation of Title IX and its implementing regulations.” The school in question allegedly converted a female restroom to an all-gender restroom leaving a male restroom and the all-gender restroom but no female restroom on a floor.
The directives in the EO create a conflict between federal and state law. School districts that have permitted student-athletes to participate according to gender identity and not necessarily their sex assigned at birth will be in the middle of this conflict, in which it is impossible to comply with both federal and state requirements.
What happens when there is a direct conflict between state and federal law, and what are school districts supposed to do?
Schools, lawyers, and courts are grappling with this very issue across the country. The (very complex) principle of “federal preemption” addresses conflicts between federal and state laws. The question of whether Title IX preempts a state law, which contains different definitions and requirements than the federal law, will undoubtedly be the subject of much litigation, as both OCR and private parties will seek to challenge these state laws. Additionally, there are questions about whether the Executive Branch, through the President or through the Department of Education, has the authority to “interpret” Title IX in a manner that addresses transgender athletic participation.
This lack of clarity leaves school districts in a challenging position: if a district complies with the EO’s interpretation of Title IX, which will be advanced by OCR and the federal Department of Education, the district will risk the consequences of violating state law and policy. But, if a district continues to comply with state law and policy, it risks an adverse finding by OCR, a threatened loss of federal funding, or a federal lawsuit.
This is a difficult situation with no easy answer or quick solution. We encourage districts to confer with their counsel before making any decisions, and be attuned to developments such as challenges to the Executive Branch’s interpretative authority concerning Title IX as well as further guidance from the state. As always, the Miller Nash education team is here to help and will continue to provide updates as this complex situation evolves.
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.
