On January 31, the U.S. Department of Education (“DOE”) confirmed that, effective immediately and applicable to all open Title IX investigations, it will enforce the first Trump administration’s 2020 Title IX regulations (“the 2020 Rule”).[1]

This comes as no surprise to higher educational institutions, many of whom have been preparing to apply the 2020 rule since January 9, 2025, when a federal district court vacated the Biden-era Title IX regulations in Tennessee v. Cardona, and others of whom never stopped applying the 2020 rule due to a wide-ranging injunction issued by a Kansas U.S. District Court in 2024.[2] However, when viewed in context with other executive orders, the January 31 DCL both clarifies and raises questions as to how those rules apply going forward.

First, the January 31 DCL clarifies that educational institutions are expected to implement the 2020 rule immediately, including for cases that are ongoing. Immediate implementation means that institutions should look at any processes that are currently under way under their 2024 rule, and ensure that the process has not deprived the parties of any rights that they would have had under the 2020 rule.

The January 31 DCL is not explicit as to how DOE defines sex under Title IX, but it seems likely that this definition does not include gender identity. The January 31 DCL as issued initially stated that reading “sex” to include gender identity, sex stereotypes, and sexual orientation was inconsistent with Title IX. However, the DOE issued a revised version of the DCL on February 4 which removed this language. Educational institutions should note that the Kentucky U.S. District Court held in Tennessee vs. Cardona that the definition of “sex” under Title IX did not include gender identity, and the administration is not appealing this decision. They should also be aware that the administration, through a January 20 executive order, has directed all executive agencies including the DOE to interpret “sex” as “an individual’s immutable biological classification as either male or female,” not inclusive of gender identity. What remains to be seen is whether state laws that do protect gender identity will be seen as conflicting with Title IX, or whether institutions in those states will be able to protect discrimination based on biological sex under Title IX, and gender identity under state law.

What does the January 31st DCL mean for higher educational institutions?

Most institutions should have little difficulty turning back to their 2020 policies, but as they do, they should also consider any developments in state law or other regulations, including those requiring protections based on gender identity. Institutions should be mindful that more clarification and guidance is likely forthcoming from the DOE within the coming weeks.

One aspect of the 2024 policies that institutions may wish to keep in place are requirements to accommodate and prohibit discrimination on the basis of pregnancy and related conditions. While the specific requirements of the 2024 rule are no longer in place, courts have long read Title IX as prohibiting discrimination based on pregnancy and related conditions, and the 2024 regulations provided a comprehensive way to prevent such discrimination. The DOE has not issued any guidance on this subject, and does not seem poised to do so.

Please stay tuned and call your Hunton lawyer with any concerns related to compliance with federal law or interpretation of Department of Education guidance.

[1] 85 Fed. Reg. 30026 (2020).

[2] Tennessee v. Cardona, No. CV 2:24-072-DCR, 2025 WL 63795 (E.D. Ky. Jan. 9, 2025), as amended (Jan. 10, 2025)(Finding that the DOE exceeded its statutory authority by redefining “on the basis of sex” inconsistently with what the court found is Title IX’s express language and purpose: to combat discrimination against women, and based on the Spending Clause and First Amendment principles of vagueness and overbreadth, the 2024 Rule is arbitrary and capricious, and constitutionally infirm); See 89 Fed. Reg. 33474 (2024).