Published on: May 13, 2025
An ATIXA Tip of the Week by Brett A. Sokolow, J.D., and the ATIXA team
Like many firms with a leadership think tank, our consultants collaborate to inform how we advise our clients and ATIXA’s members. Recently, we discussed the Trump Administration’s Executive Order (EO) that limits its interpretation of “on the basis of sex” under Title IX to “biological sex” alone, eliminating the explicit protection of gender identity.
While that EO does not have the force and effect of law, it clearly shows how the Trump Administration is now enforcing Title IX, at least until a federal court says otherwise. In this legal limbo, we are sharing our internal discussions to inform your policymaking around the question of gender identity policy protections, going forward.
What the Law Currently Says
The Supreme Court’s decision in Bostock v. Clayton County (2020) makes it clear: discrimination based on gender identity or sexual orientation is considered sex discrimination under Title VII. While Title VII applies to employment alone, its reasoning influences other areas of the law, including federal courts interpretations of Title IX.
For students, protections are evolving through regulations and court rulings. Under the Fair Housing Act’s 2016 regulations, residential students (and other tenants of colleges and schools) are explicitly protected from gender identity discrimination. Some courts have also applied Bostock’s logic to Title IX, which bans sex-based discrimination in federally funded education programs.
Several federal circuits have ruled that discrimination against transgender students is sex-based discrimination:
- The Fourth Circuit in Grimm v. Gloucester County School Board found that policies targeting transgender students constitute sex-based discrimination via gender stereotyping that violates Title IX.
- Other circuits agree, stating that punishing gender non-conformity violates Title IX and sometimes the Equal Protection Clause of the Constitution.
However, this interpretation isn’t universal. In Adams v. School Board of St. Johns County, the Eleventh Circuit ruled that Title IX does not mandate schools to allow transgender students to use bathrooms matching their gender identity. This highlights that protections are not yet settled nationwide, and can vary from jurisdiction to jurisdiction, and can be impacted by states laws, not just federal laws.
Q&A: What should institutions do?
Given this unsettled legal picture it was no surprise when ATIXA’s team of consultants recently received this question from a college client:
It has been recommended that we remove gender identity protections from our policies. Is this permissible?
A: Brett Sokolow, Partner
Only if you have no housing and no employees. If you are subject to Title VII (employees) or Title VIII (the Fair Housing Act – FHA), both include regulatory (2016 Title VIII regs) or court-made protections (Bostock) for gender identity that must be adhered to in college settings, and those protections are not overturned by an Executive Order unless and until a court so rules. If you wanted to limit gender identity protections per these laws, you could craft a policy that offers gender identity protections only for residential students who are discriminated against or harassed in housing, and for all employees protected by Title VII (thus exempting only non-residential students). That’s not something we’d recommend, and that approach has risk if a court were to rule at some point that Title IX protections include gender identity.
A: Kayleigh Baker, Senior Consultant
Perhaps the answer depends on location, then? Given what we know, the 11th Circuit would possibly be disinclined to find that this is a problem under Title IX, and the 5th might be inclined to follow suit – especially if there are state laws on the book that align with the Executive Order. On the other hand, in those circuits that have adopted an approach like the 4th Circuit in Grimm, removing gender identity protections seems like a really difficult position to defend.
A: Brett
Let me push back a bit…in the 11th Circuit, courts should follow Bostock as to employees (as binding precedent) but would not extend that Title VII ruling to Title IX. That still means employees are protected as I described, yes? Once they uphold Bostock as to employees, they’d have to do gymnastics to rule that VIII does not protect residential students as tenants under FHA, because of Bostock. Perhaps they could get there for the same reasons they won’t extend Bostock to Title IX, but I think most of us still agree that’s likely a losing argument at the Supreme Court, if and when they eventually take up this question. I get that courts are not constrained to follow HUD/FHA regs, but they are constrained to follow Bostock, which effectively says the same thing as the HUD/FHA regs. So, they are in a bit of a pickle on that. Trump’s HUD won’t enforce its own regs on this, but if a court agrees with the regs, they can require HUD to follow them. HUD has not announced that it will not follow its regs, or that it is rescinding them.
A: Daniel Swinton, Partner
Couldn’t the school also cover gender identity under its non-Title IX sexual misconduct policy involving students?
A: Brett
Right, that’s a nuanced point. If the Trump EO interprets Title IX as not including gender identity protections, that explicitly opens the door to a college implementing those protections under policies outside of Title IX, assuming state law so permits. But, I think the original question is reductionist. Assume the school does not want to protect gender identity unless it has to…
A: Joe Vincent, Partner
I think they could remove “gender identity” from a laundry list of protected classes outlined in their nondiscrimination policies as long as there is “enforcement guidance”, for lack of a better term, that notes that discriminatory conduct directed at individuals based on gender stereotypes or nonconformity constitutes discrimination based on sex. After all, that’s pretty much all Bostock did.
A: Brett
Right, if they used those provisions to enforce policy violations in lieu of an explicit protection for gender identity, that could work. But, gender identity is still a protected class (as an extension of sex) even if indirectly, in your approach, unlike in my case study.
A: Kimberly Pacelli, Partner
I agree with Joe. I dealt with this recently working with an institution. Ultimately, we concluded it was a required protection under state law and so we kept it in. To your original question, though, the counter argument was that you could still address it as “sex” per Bostock.
A: Brett
How would “victims”1 know to file those complaints, though, if they did not see gender identity listed specifically? It’s insider baseball to know that sex is an expansive protected class, and I’m not sure most students would have that appreciation.
A: Kim:
Agreed! This was exactly my point in that conversation.
A: Joe
“Victims” are often confused about what kind of complaint they’re filing though, aren’t they? Ultimately, the Title IX Coordinator decides what offenses should be charged during an initial assessment. This would only really concern me if we went out of our way to make it clear what gender identity is and how it’s not covered under the sex-based policies. Further, it seems to me that an act to deliberately not protect gender identity would, in practice, be far more limited in scope than it appears. The only place I can think of where self-selected gender identification (specifically) becomes an issue is as it relates to single sex spaces access. Gender identity “harassment” is almost always a function of harassment on the basis of sex in a much more obvious way,such that I don’t think I’d be worried about whether or not a “victim” knew to report it.
A: Brett
It’s the ones who never come in the door to report that I’m worried about, Joe.
A: Joe
Totally agree with you. Mostly just trying to rationalize how it could maybe work out okay, but I would never choose to do it this way or recommend anyone else try it.
A: Kayleigh
Not only should we be worried about the ones who don’t know to come in the door, but also for those who are paying attention and making assumptions based on the change. If last year your policies INCLUDED gender identity and those words were removed, it sends a message that those types of complaints aren’t welcome.
So, What Now?
Hopefully, we share a common understanding that the EO does not need to impact your policy, today. Courts will need to weigh in, and anticipatory compliance could run afoul of a ruling that Title IX does cover gender identity, directly or indirectly, because some level of protection is likely still going to be in place absent a state law disallowing the protection of gender identity, or a court ruling on point. Why? Well, because other existing laws still arguably protect gender identity as “sex”, and even if they don’t, many complaints will implicate gender identity as manifested through discrimination on the basis of sex stereotypes or sex characteristics, regardless of whether a policy includes the term “gender identity” or not. If your approach to this question is rooted in religious faith tenets of your institution, you already have the right to claim an exemption, so that should not really influence this discussion.
Perhaps schools will consider enshrining “gender identity” protections within the framework of a “Process B” (the generic name for any alternative process outside of Title IX) in the near term, until the courts can sort this out. Schools should carefully assess jurisdictional nuances, state law requirements, and institutional values before considering the removal of gender identity protections. Consult your legal counsel, and balance compliance with campus climate considerations.
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1 Using quote marks around term “victim” is not meant to signal irony, but is instead our internal way of designating that just because someone asserts they have been victimized does not yet mean that they have been proven to be in a Title IX process.