Cases & Developments

Executive Order: “Keeping Men out of Women’s Sports.” This Order, in reliance on the definitions of “gender” and “sex” as described in Executive Order 14168 (“Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”) requires the Secretary of Education in coordination with the Attorney General to preserve all-female athletic opportunities and locker rooms, and to provide the equal opportunity guaranteed by Title IX of the Education Amendments Act of 1972, by cabining women’s sports as reserved for women. The Order rescinds all funds from educational programs that deprive women and girls of fair athletic opportunities and opposes male competitive participation in women’s sports. The Order requires the Secretary of Education 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 sport and athletic events by requiring them, in the women’s category, to compete with or against or to appear unclothed before “males,” as defined by EO 14168. The Order further requires all executive departments and agencies to review grants to educational programs and, where appropriate, rescind funding to programs that fail to comply with the policy established by the Order. Finally, the Order requires the Secretary of State to see that the International Olympic Committee amends the standards governing Olympic sporting events to promote fairness, safety, and the interests of female athletes by ensuring that eligibility for participation in women’s sports are determined according to sex and not gender identity or hormone levels. On February 5, the White House also published a Fact Sheet to aid in the implementation of its Order. 

Executive Order: Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government. This Executive Order states that it is the policy of the United States to recognize two sexes, male and female, and such sexes are not changeable. The Order states that the Executive Branch will enforce all sex-protective laws and further specifies definitions for “sex,” “women,” “men,” “female,” “male,” “gender ideology,” and “gender identity.” The Order requires that within thirty days, the Secretary of Health and Human Services shall provide the U.S. Government, external partners, and the public with clear guidance expanding on the sex-based definitions set forth in the Order. The Order further requires the Secretaries of State and Homeland Security, as well as the Director of Office of Personnel Management to implement changes to require that government-issued identification documents, including passports, visas, and Global Entry cards, to reflect the holder’s sex, as limited by the Order. Among other things, the Order requires Agencies to take all necessary steps, as permitted by law, to end the Federal funding of “gender ideology” and charges the Attorney General with issuing guidance to agencies to correct the “misapplication” of the U.S. Supreme Court’s decision in Bostock v. Clayton County (2020) to sex-based distinctions in agency activities. The Order requires that Federal funds shall not be used to promote gender ideology. Further, the Order rescinds several prior Executive Orders and guidance resources from both the White House and the Department of Education on Transgender Equality and Inclusive Environments for LGBTQI+ students. Finally, the Order requires that a proposed bill drafted by the Assistant to the President is expected to be introduced within thirty days of the Order with intent to codify the definitions in the Order. 

The United States House of Representatives passed H.R. 28, the “Protection of Women and Girls in Sports Act of 2025” (the Bill), which seeks to amend the Education Amendments of 1972. The Bill states that “it shall be a violation [ ] for a recipient of Federal financial assistance who operates, sponsors, or facilitates athletic programs or activities to permit a person whose sex is male to participate in an athletic program or activity that is designated for women or girls.” It also defines sex as “based solely on a person’s reproductive biology and genetics at birth.” 

Judgment in favor of the University. Plaintiffs, former students at the University of Kentucky, filed a putative class action against the University alleging Title IX and Equal Protection violations. Specifically, plaintiffs alleged the number of opportunities for women to participate in varsity sports is not substantially proportional to the percentage of women enrolled at the University. Plaintiffs further alleged the University does not have a history or continued practice of expanding intercollegiate athletic opportunities for female students, and it has not fully or effectively satisfied the interests and abilities of female students in intercollegiate varsity athletic opportunities. Plaintiffs sought addition of women’s varsity lacrosse, field hockey, and equestrian teams. The Court applied the three-prong effective accommodation test, to determine, if (1) there is a statistical disparity in participation opportunities for men and women; (2) a history and continued practice of expanding participation opportunities responsive to the developing interests and abilities of the underrepresented sex; and (3) the institution is fully and effectively accommodating the interests and abilities of the underrepresented sex. After a bench trial, the court concluded that the University (1) does not provide female students with athletic participation opportunities substantially proportionate to its enrollment (finding that to reach substantially proportionate numbers, the University would need to offer at least 116 additional spots for women); and (2) the University did not prove a history and continued practice of expanding participation opportunities for its female students. The court also found the University’s procedure for determining whether to add teams was “problematic,” and noted that the University had only added one women’s sport since 2017. Ultimately however, the court held that under the third prong, the salient question is whether the University meets the actual interest and abilities of its students, and that although “these numbers may prove an interest in various sports, but they are not evidence of the numbers of female students at [the University] who can play at the varsity level or even have the interest in doing so.” And since plaintiffs “confine[d] their argument” to three specific sports for which “not nearly enough students who indicated interest and ability in … provided contact information to field a team in any of” the court entered judgment in favor of the University.  

Opinion affirming-in-part and reversing-in-part. Plaintiffs, four non-students, brought Title IX claims challenging the University of North Dakota’s decision to discontinue its women’s hockey team after the 2017 season. The District Court dismissed the case for lack of standing absent allegations concrete injury. The Eighth Circuit affirmed dismissal of two plaintiffs, confirming that Article III imposes limitations on when prospective students have standing to bring Title IX claims based on a university’s lack of an athletic team, including that they must sufficiently allege that they have both the requisite academic credentials for admission and the athletic skills to compete. The Circuit reversed and remanded two other plaintiffs’ claims reasoning that one putative student who alleged she was recruited to play hockey at the University, and another who was accepted to attend the University and a two-time state hockey champion but did not have the chance to try-out for the team, both adequately alleged a “definite intent to attend” the University and were “able and ready” to compete if women’s hockey were available.