Title IX is a federal law that prohibits any educational institution that receives federal financial assistance — such as grants or student loans — from discriminating on the basis of sex, and the U.S. Department of Education’s (ED) Office for Civil Rights is responsible for the law’s administrative enforcement. Because all federal agencies that provide grants of financial assistance are required to enforce Title IX’s nondiscrimination mandate, the U.S. Department of Energy (DOE), like many other federal agencies, enacted implementing regulations (10 CFR 400 et seq). DOE is now proposing changes to some of its Title IX rules to ensure alignment with President Donald Trump’s executive orders (EOs) seeking to ban transgender athletes from women’s sports and declaring that there are only two sexes, male and female.
Regarding sports and athletic programs, DOE is proposing to rescind the rule that requires a recipient to permit a student to try out for a noncontact sports team of the opposite sex when the school does not have a team for the student’s sex. For example, a school that does not have a women’s tennis team would no longer be required to allow a female athlete to try out for the men’s tennis team, a practice largely common in schools in rural areas. As justification for the change, DOE maintains that such equal participation requirements “ignore differences between the sexes which are grounded in fundamental and incontrovertible reality,” and that its proposed change would align the rule with the “Keeping Men Out of Women’s Sports” Executive Order that expresses the Trump Administration’s opposition to “male competitive participation in women’s sports more broadly, as a matter of safety, fairness, dignity and truth.”
The proposed changes affect requirements related to equal participation on the basis of sex in sports and education programs and activities for recipients of federal financial assistance administered by DOE, including schools that have received Renew America’s School grants for energy efficiency. With the changes due to take effect on July 15, 2025, thousands of comments have been submitted, though they are not publicly available.
Commentators and advocacy groups that have made their comments known publicly have expressed concerns that the change will harm cisgender athletes as well as transgender, transitioning, nonbinary and intersex athletes. For example, commentators argue that the change will reduce opportunities for cisgender athletes to compete on sports teams, thereby limiting their opportunities for sports scholarships and other benefits.
Additionally, DOE is seeking to rescind certain provisions related to education programs and activities it oversees. Specifically, DOE proposes rescission of rules related to “Remedial and affirmative action and self-evaluation.” (10 CFR 1042.110 b, c, and d) Under the “remedial and affirmative action” requirement, a recipient, without having to make a finding of discrimination, is permitted to take any affirmative action to remove barriers that limit the participation of persons of a particular sex in education programs and activities. In the past, this provision has been used to close gaps between men and women in fields where women have historically faced exclusion, such as science, technology, engineering and mathematics. DOE posits that such a requirement is “unnecessary.” According to DOE, requirements related to “self-evaluation and record maintenance” expired long ago and are no longer necessary.
In addition to these proposed changes, the method adopted by DOE to affect the changes is noteworthy. Rather than the normal rulemaking process with at least a 90-day comment period, DOE is using a “direct final rule” process that is typically used for non-controversial or routine matters to expedite rulemaking. With the direct final rule, the agency simply publishes a rule in the Federal Register with an effective date. The rule then comes into effect on that date unless significant adverse comments are submitted, in which case the rule will be withdrawn and may then be processed under the traditional rulemaking process.
These changes, by themselves, are not expected to have a great impact on schools. First, according to news reports and data from DOE, only about 80 schools nationwide receive funds administered by DOE. Second, because the changes simply remove the equal participation requirements, even those schools that receive DOE-administered funds may still choose to offer such programs. The changes, however, may create some uncertainty, if not confusion, for schools that receive federal financial assistance from DOE and from other federal agencies that have their own Title IX regulations, such as the ED. As ED’s Title IX regulations contain the same requirements that DOE is seeking to rescind, such schools must ponder which rules to follow — ED’s or DOE’s. Also, with recent developments about the continuing existence of the Education Department, it is an open question whether ED will continue to enforce its own rules in this regard.
