ECR Cross-Post: Title IX, Sex, and Gender Identity: Chaos or Calculation?

Last week ended with the Trump administration declaring a return to a narrow definition of “sex” under the 2020 Title IX rule—a definition that never actually existed. This week began with America First Legal Foundation filing a complaint with the feds with a novel and somewhat perplexing claim that gender-inclusive bathrooms violate Title IX’s prohibition on sex discrimination. These moves have fueled the already growing chaos and confusion in education civil rights, leaving many questioning whether there is a calculated strategy at play or if opponents of gender identity protections are throwing things at the wall to see what sticks. Until we know more, educational leaders should continue to approach these and similar developments with careful deliberation, not rash decisions. Keep reading for an explanation of these events and thoughts on how to move forward.

Despite criticizing past administrations for using informal guidance to create new law, on January 31, 2025, the Department of Education’s Office for Civil Rights issued a “Dear Colleague Letter” that appeared to do just that—albeit with a clumsy attempt to obscure the move.

The DCL says that OCR will enforce Title IX under the 2020 regulations issued during Trump’s first term rather than the 2024 rules, issued by the Biden administration, that were vacated by a federal court in Kentucky earlier in January. That’s not news—the Biden OCR already made clear before leaving office that OCR was going back to using the definitions, procedural protections, supports, and reporting processes required by the 2020 rule.

The significance of the January 31 DCL is its statement that “sex” means “the objective, immutable characteristic of being born male or female as outlined in the 2020 Title IX Rule.” Why is that significant? Because the 2020 Title IX rule does not define “sex” in any such way. It does not define “sex” at all. The question of whether “sex” under Title IX encompasses gender identity and sexual orientation—and the extent to which it does, if at all—is one of the most hotly debated topics in Title IX today. To the extent that the debate is leaning in one direction rather than the other, court decisions suggest that it is toward protecting LGBTQI+ status, not against it. It’s certainly not as straightforward or clear-cut as the DCL suggests.

On February 3, 2025, America First Legal (not to be confused with America First Policy Institute, ED Secretary-nominee Linda McMahon’s think tank) filed a complaint with OCR alleging that several Virginia school districts’ gender-identity-friendly bathroom and locker room policies violate Title IX. AFL is an organization that, as of this writing, advertises on its website that it was founded by Stephen Miller, who served as a senior advisor in the first Trump administration and is currently serving as Donald Trump's Deputy Chief of Staff for Policy. OCR has made it clear that it is ready and willing to investigate schools’ policies protecting gender identity, making AFL’s complaint relatively unsurprising.

What is surprising about AFL’s complaint is the novel legal theory it espouses. Unlike the recent Denver Public Schools directed investigation in which OCR made a very traditional argument (not having a sex-segregated girls' bathroom while having a sex-segregated boys' bathroom is sex discrimination), AFL can't make that argument in this case. 

The letter argues that allowing transgender or gender-fluid students to use facilities matching their gender identity violates the rights of cisgender students by permitting “‘gender expansive and transgender students’ the ability to feel safe and comfortable by using sex-segregated intimate facilities consistent with their ‘gender identity,’ while denying similarly situated individuals, whose “gender identity” is the same as their sex, the ability to feel safe and comfortable in the use of the sex-segregated common restrooms and locker rooms of their sex.”

If, however, as the January 31 DCL claims, “sex” under Title IX does not include gender identity, then there is no prohibition against a school treating students differently on that basis. In the case of sex-segregated bathrooms, as long as all those “born male” are treated the same as all those “born female,” there is no Title IX problem. That’s the case here. Whether you are “born male” or “born female,” you are both (1) allowed to use the restroom that matches your gender identity and (2) put at the same risk of having to share a restroom with someone whose gender identity does not match their sex assigned at birth. There is no different treatment of those “born male” and those “born female,” which is all that Title IX protects under this interpretation of “sex.” Although that concern could arise if a school eliminated sex-segregated bathrooms for one sex—whether by explicitly changing its policy, like in Denver, or, as a matter of circumstance, by only maintaining sex segregation for one sex because the school happens to have only one transgender student, and they are allowed to use the bathroom matching their gender identity, ending the sex-segregation of that bathroom—there is no claim that any school has done either of those things here.

Still with me? If "sex" under Title IX does include gender identity, the complaint also fails. In that case, all “girls” are allowed to use a bathroom designated for girls, and all “boys” are allowed to use a bathroom designated for boys. The definition of “girls” and “boys” just includes both those “born” into that sex and those whose gender identity matches that sex.

Why would the Trump administration issue a letter that so blatantly misrepresents the definition of “sex” under the 2020 Title IX rule? Why would the AFL want OCR to take on a convoluted argument challenging school bathroom policies that appears to be dead on arrival? 

Perhaps there is no method to any of the madness, and this is really just the proverbial spaghetti being thrown at the wall. But there may be a broader strategy at play. Ezra Klein of the New York Times explained one potential strategy this way in a recent audio essay:

Here, with so much going on, we are seeing an active chilling effect on schools, which may be inclined to rush to change policies to try to stay out of the spotlight and fend off the exhaustion of trying to keep up with all the changes. Nothing stops AFL from filing complaints across the country, and nothing stops OCR from investigating them. OCR complaints allow almost no real opportunity for schools to challenge OCR’s underlying legal theories until a finding has been made and the school’s federal funding is hanging in the balance. The overwhelming majority of schools fold to OCR’s pressure before getting to that point, meaning that there is often little practical ability to challenge OCR’s legal positions at any point. Schools seeing that writing on the wall may just decide to fold—and that very well may be the point of the DCL and AFL complaint. Others, recognizing OCR's slow and limited enforcement abilities, may decide to wait to see how cases start to play out before making changes, especially if their communities support gender identity protections. 

Ultimately, whether these moves are part of a coordinated strategy or simply a flurry of disjointed actions, the result is the same: uncertainty, fear, and growing pressure on schools to react without clarity on what the law requires. Educational institutions should resist the urge to make hasty policy and instead make deliberate decisions with expert legal support and a firm understanding of their local environments. For assistance with navigating this or any other education civil rights matter, contact me at jackie@educationcivilrights.com.