Tennessee v. Cardona, [1] Vacatur of the Department of Education’s 2024 Rule, and Gender Identity as a Protected Characteristic Under the Trump Administration

By: Grace McCrone*                                                                      Posted: 2/26/2024

Background on Title IX and the 2024 Final Rule

On August 1, 2024, the United States Department of Education (“Department of Education”) put a new final rule (“2024 Rule”) into effect.[2]  The 2024 Rule amended the regulations that dictate how Title IX, a law that prohibits discrimination in schools that receive federal funding, is interpreted and enforced.[3]  The 2024 Rule was intended to expand Title IX’s protections for covered students by clarifying that Title IX’s prohibition on sex discrimination includes a prohibition on “sex-based harassment and sexual violence.”[4]  The 2024 Rule also dictated that Title IX’s protections prohibited discrimination on the basis of status as a victim of sexual assault, on the basis of status as a pregnant student, and on the basis of gender identity.[5]

Notably, the adoption of the 2024 Rule marked the Department of Education’s first time codifying protections for transgender students.[6]  However, the 2024 Rule only purported to create these additional gender-identity-based protections in the context of participation in school activities and access to and use of school facilities and physical spaces at schools.[7]  So, while the 2024 Rule addressed the ability of students to access and use single-sex school facilities that align with their gender identity, they did not address which sports teams children have a right to join and compete on.[8]

Legal Challenges to the Department of Education’s 2024 Final Rule and Vacatur in Tennessee v. Cardona

When the 2024 Final Rule went into effect, more than twenty republican-governed states filed lawsuits seeking to invalidate and strike it.[9]  Initially, these legal challenges temporarily prevented the 2024 Rule from fully going into effect in a total of twenty-six states; the 2024 Rule was subject to an injunction while arguments over the Rule’s validity were heard by the relevant courts.[10]  One such challenge was filed in the federal District Court for the Eastern District of Kentucky by the states of Tennessee, Kentucky, Indiana, Ohio, Virginia and West Virginia.[11]  The decision in this case, Tennessee v. Cardona, resulted in the 2024 Rule being vacated and therefore rendered ineffective in all jurisdictions across the U.S.[12]  In Cardona, the state plaintiffs, and the intervenor plaintiffs that were eventually permitted to join the suit alongside the states, argued that the 2024 Rule was arbitrary and capricious, that the Department of Education had exceeded the power granted to them by Title IX, and that the 2024 Rule was otherwise unconstitutional.[13]  The Department of Education refuted these arguments, especially insofar as the plaintiffs’ challenges might result in vacatur.[14]

On January 9, 2025, in response to the parties' cross-motions for summary judgement, the District Court issued an order in favor of the plaintiff states that, on several different grounds, vacated the 2024 Rule.[15]  First, the Court held that Title IX does not grant the Department of Education the authority to issue Title IX regulations that include gender identity in the interpretation of “on the basis of sex.”[16]  Additionally, the Court held that the 2024 Rule violated the United States Constitution.[17]  Finally, the Court held that the 2024 Rule was invalid because it constituted arbitrary and capricious agency action.[18]  Regarding a remedy, the District Court declined to simply sever the parts of the 2024 Rule that it found to be impermissible, and instead concluded that the entirety of the 2024 Rule was invalid and vacated the entire 2024 Rule.[19]  As a result of this holding, the 2024 Rule was deemed unenforceable across the nation, the legal challenges to the 2024 Rule which were pending in other districts were rendered moot, and the prior version of Title IX’s regulations went back into effect.[20]

Implications of the Cardona Decision, Interpreting Title IX, and Sex-Discrimination Protections Under the Second Trump Administration

As previously mentioned, the portions of the 2024 Rule that were at issue in Cardona did not provide direction about whether school children have a right to play on single-sex sports teams under Title IX.[21]  Nevertheless, conservative opponents of the 2024 Rule, including those involved in the Cardona litigation, characterized the now-vacated 2024 Rule as an objectionable attempt to extend gender-identify protections to the school sports context.[22]  Groups, such as an anti-LGBTQ+ rights group that represented the intervenor plaintiffs in Cardona litigation and has frequently worked with the Trump administration on anti-LGBTQ+ legislative and judicial initiatives, have attempted to frame the vacatur of the 2024 Rule as a victory for school districts and states that seek to prevent transgender children from participating in school athletics.[23]

In light of this, and despite the fact that participation in single-sex sports was not directly at issue in Cardona, its holding may still be among several signals communicating a limited likelihood that students will be afforded federal protections against discrimination on the basis of gender identity in the context of athletics participation in the future.[24]  For example, in December 2024, before leaving office, President Biden withdrew proposed regulations that would have sought to prevent schools from banning transgender athletes from participating in single-sex sports.[25]  This withdrawal was executed in light of legal challenges, presumably including those raised in Cardona, that Title IX regulations regarding gender identity were facing.[26]  President Trump’s Department of Education has since issued a “Dear Colleague Letter” acknowledging the vacatur of the 2024 Rule and directing covered educational institutions to comply with the 2020 Rule, prior regulations promulgated by the Department of Education.[27]

To add insult to injury for LGBTQ+ individuals and advocacy groups, during the first weeks of the second Trump presidential administration, Congress initiated efforts to pass legislation that would amend Title IX by defining “sex,” as being “based solely on a person’s reproductive biology and genetics at birth.”[28]  This bill was passed on January 14, 2025 in the House of Representatives.[29]  Furthermore, President Trump also signed an executive order that specifically directs federal agencies to adhere to binary and gender-essentialist understandings of “sex” when interpreting and enforcing regulations that use the term; this interpretation excludes gender identity from the definition of “sex.”[30]  Through the advancement of the recent house bill and the executive order, Congress and President Trump have signaled that Title IX will not be interpreted to include gender identity in its protected class; meaning that, in the coming years, individuals with gender identities differing from their sex at birth will likely not be afforded rights and protection under Title IX.[31]  This decision to limit the interpretation and application of Title IX has the potential to impact the rights and overall safety of thousands of school aged children, and their right to safely compete with and against their peers on sports teams that align with their gender identity.[32]

*Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2025, Villanova University Charles Widger School of Law

[1] See Sex Discrimination: Overview of the Law, U.S. Dep’t of Educ. (Jan. 31, 2025), https://www.ed.gov/laws-and-policy/civil-rights-laws/title-ix-and-sex-discrimination/sex-discrimination-overview-of-law (explaining that U.S. Department of Education’s 2024 Rule, titled “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance,” which was issued in April 2024 and took effect in August 2024, amended regulations that dictate how Title IX is implemented).

[2] See 34 C.F.R. § 106 (implementing Title IX and detailing how educational institutions that receive federal funding must comply with principles of Title IX, including prohibiting sex discrimination in education programs and activities); see also Sex Discrimination: Overview of the Law, supra note 2 (explaining purpose of Title IX statute that was enacted by Congress in 1972).  “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance [absent certain exceptions.]”  See 20 U.S.C. § 1681(a) (outlining basics of Title IX requirements).

[3] See Sex Discrimination: Overview of the Law in April 2024, supra note 2 (explaining purpose of 2024 Rule).  The 2024 Rule was meant to “promote educational equity and opportunity for students across the country by strengthening and clarifying protections that address all forms of sex discrimination.”  See Molly Bohannon, Federal Judge Overturns Biden’s Protections for Gender Identity in Schools, Forbes (Jan. 9, 2025, 5:55 PM), https://www.forbes.com/sites/mollybohannon/2025/01/09/federal-judge-overturns-bidens-protections-for-gender-identity-in-schools/ (explaining that Education Secretary Miguel Cardona framed 2024 Rule as something that would “clarify that all our nation’s students can access schools that are safe, welcoming, and respect their rights”); see also Collin Binkley, More Republican States Challenge New Title IX Rules Protecting LGBTQ+ Students, AP News (Apr. 30, 2024, 6:51 PM), https://apnews.com/article/title-ix-lawsuit-transgender-sports-f47922529d12b68580a4fb5bc5981ba5 (characterizing 2024 Rule as “most comprehensive coverage” students have yet to receive from Title IX).

[4] See, e.g., 34 C.F.R. § 106.10 (defining scope of “discrimination on the basis of sex”); see also Bohannon, supra note 4 (identifying which groups received additional anti-discrimination protection based on 2024 Rule); 34 C.F.R. § 106.31 (establishing de minimis harm standard for permitted different treatment and stipulating that any practice which prevents someone from participating in education program or activity consistent with their gender identity subjects them to more than de minimis harm on basis of sex).

[5] See Bohannon, supra note 4 (asserting 2024 Rule is U.S. Department of Education’s first explicit codification of protection against discrimination on basis of gender identity); see also 89 Fed. Reg. 33809 (defining gender identity as “an individual’s sense of their gender, which may or may not be different from their sex assigned at birth”).

[6] See Protections Against Discrimination on the Basis of Sex, Including Sexual Orientation and Gender Identity, and Pregnancy and Related Conditions Under the New Title IX Final Rule, Nat’l Educ. Ass’n (May 20, 2024), https://www.nea.org/resource-library/title-IX-final-rule-protections-against-discrimination (explaining 2024 Rule prohibits separating individuals or otherwise treating them differently on basis of gender identity, but still recognizes certain exceptions for single-sex sports and housing).

[7] See id. (explaining scope of 2024 Rule’s protections against discrimination on basis of gender identity); see also Zach Montague, Biden’s Title IX Rule Goes into Effect in 24 States as Legal Challenges Continue, N.Y. Times (Aug. 1, 2024), https://www.nytimes.com/2024/08/01/us/politics/biden-title-ix-gender-sex-discrimination.html (explaining 2024 Rule does not regulate whether young transgender athletes must be allowed to play on certain same-sex sports teams).  The Department of Education’s Assistant Secretary for Civil Rights stated that the 2024 Rule addressed manifestations of gender identity discrimination “separate and apart from on which team an athlete plays in a school” and that the agency was working on regulation to address athletic participation.  See Montague, supra note 8 (noting current limited bounds of Title IX regarding athletic participation and gender identity intersections).

[8] See Bohannon, supra note 4 (describing legal challenges that state attorneys general filed in opposition to 2024 Rule as being based in theories that 2024 Rule’s prohibition of discrimination on basis of gender identity encroached on First Amendment rights of students and staff “by requiring them to recognize a person’s [gender identity],” and encroached on states’ rights to enact their own laws, “including [laws] restricting [which] bathrooms and locker rooms . . . are available to transgender students”); see also Geoff Mulvihill & Sara Cline, Conservative States Challenge Federal Rule on Treatment of Transgender Students, AP News (Apr. 29, 2024, 5:10 PM), https://apnews.com/article/title-ix-lawsuit-states-bathrooms-lawsuit-f731ff2f1afd24a1f246443f12053bcc (explaining common legal arguments from states’ lawsuits); Brooke Migdon, Federal Judge Strikes Down Biden Title IX Rules, The Hill (Jan. 9, 2025, 3:14 PM), https://thehill.com/homenews/state-watch/5077271-kentucky-judge-rules-biden-title-ix/ (explaining that lawsuits, including one filed in Kentucky, argued that 2024 Rule violated Title IX’s original purpose, which was to create “equal opportunities for men and women”).

[9] See Montague, supra note 8 (explaining republican states’ attorneys general challenged 2024 Rule by filing 10 lawsuits).  These lawsuits triggered injunctions that prevented the 2024 Rule’s protections from taking effect in twenty-six states.  See Sarah Hartley, State of Tennessee v. Cardona: Implications of the Vacatur of the 2024 Title IX Regulations, Bryan Cave Leighton Paisner LLP (Jan. 15, 2025), https://www.bclplaw.com/en-US/events-insights-news/state-of-tennessee-v-cardona-implications-of-the-vacatur-of-the-2024-title-ix-regulations.html#:~:text=The%20court%20noted%20that%20Bostock,a%20male%20or%20female.%E2%80%9D%20The (“As a result of those piecemeal preliminary injunctions, the Department of Education was preliminarily enjoined from enforcing the 2024 Title IX Rule in at least 26 states and across more than 1,000 K-12 schools and institutions of higher education.”).

[10] See Zach Montague, Biden Administration’s New Title IX Rules Are Blocked in Six More States, N.Y. Times (June 17, 2024), https://www.nytimes.com/2024/06/17/us/politics/new-title-ix-rules-blocked.html (discussing Cardona and Eastern District of Kentucky's associated initial injunction on 2024 Rule).

[11] See generally Tennessee v. Cardona, No. CV 2:24-072-DCR, 2025 WL 63795, at *6–7 (E.D. Ky. Jan. 9, 2025) (holding challenged sections of 2024 Rule invalid and vacating entirety of 2024 Rule); see also Sex Discrimination: Overview of the Law in April 2024, supra note 2 (summarizing holding in Cardona); Hartley, supra note 10 (noting order on motion for summary judgment in Cardona was first final holding issued in connection with 2024 Rule cases).

[12] See Cardona, 2025 WL 63795 at 14 (summarizing arguments Plaintiffs presented in their motion summary judgment).

[13] See, e.g., id. at 3 (restating Department of Education’s argument that Supreme Court’s interpretation of "because of sex” Bostock); see also id. at 12 (acknowledging Department of Education’s argument that, even if Court deemed three challenged sections of 2024 Rule invalid, remainder of rule should not be invalidated); Lisa Karen Atkins, Amanda T. Quan & Elizabeth T. Jozsi, Different School of Thought, Part IV: Partial Stays of Injunctions Against Enforcement of New Title IX Regs Requested from Supreme Court, Ogletree Deakins (Aug. 9, 2024), https://ogletree.com/insights-resources/blog-posts/different-school-of-thought-part-iv-partial-stays-of-injunctions-against-enforcement-of-new-title-ix-regs-requested-from-supreme-court/ (explaining that before Cardona order was issued, Department of Education had been challenging injunctions, issued by several district courts, that temporarily prevented entire 2024 Rule from going into effect).  The Department of Education sought a partial stay that would allow the Department to implement the uncontested sections of the 2024 Rule while the provisions “directly related to the respondents’ claimed harms” were litigated.  See Jozsi, supra note 14 (explaining bifurcation of 2024 Rule provisions to allow uncontested sections to be implemented as written).

[14] See generally Cardona, 2025 WL 63795 at 1 (holding U.S. Department of Education’s 2024 Rule “exceed[s] the Department’s authority under Title IX, violate[s] the Constitution, and are the result of arbitrary and capricious agency action”).

[15] See id. at 4 (holding that Department of Education exceeded authority granted to it by Title IX by adopting 2024 Rule).  The District Court attempted to square this conclusion with the United States Supreme Court’s holding in Bostock v. Clayton County, which interprets Title VII’s prohibition on discrimination “because of [sex]” to include discrimination because of gender identity.  See id. at 2–4 (reasoning that Bostock decision only applied to Title VII, that Title IX should not be interpreted same way that Title VII is interpreted, that Title IX should not include gender as protected category because Title IX’s ban on “discrimination on the basis of sex means discrimination on the basis of being a male or female,” and that Title IX did “not purport to address bathrooms, locker rooms, or anything else of the kind”).

[16] See id. at 4–5 (“The [2024] Rule also suffers significant constitutional infirmities.”); see also id. at 4 (holding 2024 Rule violated First Amendment).  The 2024 Rule violated the First Amendment of the United States Constitution because the 2024 Rule’s de minimis harm standard constituted improper government infringement on the free speech of teachers and others.  See id. at 4 (holding 2024 Rule was void for vagueness); see also id. at 5 (holding 2024 Rule violated Spending Clause of United States Constitution because, by imposing uncertain conditions on receipt of federal funds, 2024 Rule induced unconstitutional action).

[17] See id. at 5 (holding Department of Education departed from its prior, longstanding interpretation of “sex” and did not adequately explain why gender identity was included in 2024 Rule).

[18] See id. at 6 (“[T]he three challenged provisions fatally taint the entire rule.”).  This is because the understanding of what counts as discrimination on the basis of sex under Title IX is central to Title IX and “permeates virtually every provision of the law.”  See id. at 12 (concluding that 2024 Rule is invalid).

[19] See Kentucky Federal Court Strikes Down Title IX Regulations, Michael Best & Friedrich LLP (Jan. 13, 2025), http://michaelbest.com/Newsroom/358930/Kentucky-Federal-Court-Strikes-Down-Title-IX-Regulations#:~:text=On%20Thursday%2C%20January%209%2C%202025,immediately%2C%20impacts%20educational%20institutions%20nationwide (explaining that because decision in Cardona vacated 2024 Rule in its entirety, it is no longer valid in any state); see also Craig Trainor, Dear Colleague Letter: Title IX Enforcement Directive, U.S. Dep’t of Educ. 1– 2 (Feb. 5, 2025), https://www.ed.gov/media/document/title-ix-enforcement-directive-dcl-109477.pdf (emphasizing that educational institutions will be required to comply with Department of Education’s 2020 Rule with respect to Office of Civil Rights’ Title IX enforcement).

[20] For further discussion of the extent to which gender identity and single-sex sports teams were directly addressed by the 2024 Rule, see supra notes 3–8 and accompanying text.

[21] See Andrew Demillo, Federal Rule on Title IX is a Ruse to Require Trans Sports Participation GOP States Say, AP News (May 31, 2024, 9:30 AM), https://apnews.com/article/title-ix-transgender-sports-athletes-7bf158a721fa40623ec18c3a4fef4525 (stating that challengers to 2024 Rule criticized it as “open[ing] the door to forcing schools to allow transgender athletes to compete on teams aligning with their gender identity”); see also Bohannon, supra note 4 (stating Attorney General of Tennessee characterized decision in Cardona as “a huge win for Tennessee, for common sense, and for women and girls across America” and called claims raised in Cardona part of “relentless push to impose a radical gender ideology through unconstitutional and illegal rulemaking”); Mark Guiney, Title IX and the Biden Administration’s Assault on Women’s Sports, Heritage Found., https://www.heritage.org/gender/heritage-explains/title-ix-and-the-biden-administrations-assault-womens-sports (last visited Feb. 15, 2025) (criticizing inclusion of transgender identity as prohibited form of sex discrimination under Title IX).

[22] See Victory for Women, Girls: Federal Court Rejects Biden Admin Redefinition of “Sex” in Title IX Across Country, All. Defending Freedom (Jan. 9, 2025), https://adfmedia.org/press-release/victory-women-girls-federal-court-rejects-biden-admin-redefinition-sex-title-ix (asserting that organization's “attorneys represent[ed] high-school female athlete, Christian educators in successful legal challenge against [Department] of [Education] rule change”); see also Audrey Li, Case: State of Tennessee v. Cardona, C.R. Litig. Clearinghouse (Oct. 7, 2024), https://clearinghouse.net/case/45612/ (summarizing plaintiffs' allegations and detailing inclusion of intervenor plaintiffs, including Christian Educators Association International). (explaining Alliance Defending Freedom’s involvement in Cardona and connection to intervenor plaintiffs who were brought into case); Alliance Defending Freedom, S. Poverty L. Ctr., https://www.splcenter.org/resources/extremist-files/alliance-defending-freedom/ (last visited Jan. 30, 2025) (“ADF also works to develop religious liberty legislation and case law that will allow the denial of goods and services to LGBTQ people on the basis of religion.”).  “The Alliance Defending Freedom is a legal advocacy and training group that has supported the recriminalization of sexual acts between consenting LGBTQ adults in the U.S. and criminalization abroad.”  See Alliance Defending Freedom, supra note 23 (“Since the election of President Trump, ADF has become one of the most influential groups informing the administration’s attack on LGBTQ rights.”).

[23] For further discussion of the other signals, see infra notes 25–31 and accompanying text.

[24] See Collin Binkley & Chris Megerian, White House Starts Scrapping Pending Regulations on Transgender Athletes and Student Debt, AP News (Dec. 20, 2024, 6:59 PM), https://apnews.com/article/student-loan-forgiveness-debt-cancellation-619a94aa46c4e356f6d6cf7c6fa13e32 (explaining Biden administration’s decision to withdraw several proposed regulations before end of President Biden’s term in office).

[25] See id. (stating Biden’s Department of Education “said it was withdrawing the proposal because of ongoing litigation over how Title IX . . . should handle issues of gender identity”).

[26] See Trainor, supra note 20 (writing letter acknowledging decision in Cardona, referencing executive order to define sex, and referencing H.R. 28); see also Carrie Evans Wilson & Grace Wagner, The State of Title IX After Tennessee, et. al. v. Cardona: What Happens Now?, Montgomery McCracken Walker & Rhoads LLP (Feb. 3, 2025), https://www.mmwr.com/the-state-of-title-ix-after-tennessee-et-al-v-cardona-what-happens-now/ (noting that President Trump’s executive order would have been “fatal” to 2024 Rule because its definition of sex contradicts 2024 Rule’s definition).

[27] See Hartley, supra, note 10 (explaining how H.R. 28 would amend Title IX).

[28] See id. (explaining H.R. 28 was passed via partisan vote of 218 to 206).

[29] See Jenna M. Lakamp, Onalee R. Yousey & Ida S. Shafaie, President Trump Signs Executive Orders Impacting Anti-Discrimination, DEI and Gender: What Employers Should Know, Armstrong Teasdale LLP (Jan. 25, 2024), https://www.armstrongteasdale.com/thought-leadership/president-trump-signs-executive-orders-impacting-anti-discrimination-dei-and-gender-what-employers-should-know/ (explaining executive order “defines sex as an individual’s immutable biological classification as either male or female, and explicitly excludes gender identity from the definition of sex”).  The Trump administration centers its approach to “protection of single-sex spaces in workplaces and public entities” around the administration’s position that sex is binary.  See id. (explaining that executive order directs federal agencies to interpret and apply law using these definitions of sex).

[30] For further discussion of the signals from the Trump administration regarding the interpretation of Title IX, see supra notes 21–30 and accompanying text.

[31] See Fact Sheet: The Importance of Sports Participation for Transgender Youth, Ctr. for Am. Progress Action Fund (Mar. 18, 2021), https://www.americanprogress.org/article/fact-sheet-importance-sports-participation-transgender-youth/#:~:text=Participation%20in%20athletics%20in%20general,at%20school%20for%20LGBTQ%20students (summarizing several studies which concluded that school policies allowing transgender children to access and participate in athletics can reduce harm).  Inclusive policies are associated with decreased suicide risk, “increased feelings of safety at school,” and decreased likelihood of experiencing victimization or harassment for LGBTQ+ youth.  See id. (referencing studies which concluded transgender and nonbinary athletes had higher grades than those who did not participate in athletics and “LGBTQ athletes reported [twenty] percent lower rates of depressive symptoms”).  See Erik Ortiz, After Years of Debate, Trump Upends Trans Sports Landscape with the Stroke of a Pen, NBC News (Feb. 26, 2025), https://www.nbcnews.com/nbc-out/out-politics-and-policy/trump-upends-transgender-sports-landscape-stroke-pen-rcna192056 (explaining that NCAA has responded to Trump’s executive orders by changing NCAA policy such that only “student-athletes assigned female at birth” may participate in NCAA athletic competition); see also id. (explaining that Trump Administration’s Department of Education has announced that it will investigate schools, universities, and districts that permit students to participate on single-sex sports teams that align with their gender identity for violations of Title IX); Id. (explaining Trump Administration’s Department of Education has encouraged high schools and universities to retroactively rescind awards, titles, and records “held by transgender women”).