By Ellen J. Staurowsky, Ed.D., Senior Contributor and Professor, Sports Media, Ithaca College
As the effects of the cuts to the U.S. Department of Education (ED) and its Office for Civil Rights (OCR) take hold, reliance on interagency efforts to pursue Title IX issues pertaining to transgender athletes has increased. Between February and March of 2025, the Maine Department of Education was investigated by the U.S. Department of Education and the U.S. Department of Health and Human Services for allegedly violating Title IX by allowing transgender girls to participate on girls’ teams. The U.S. Department of Agriculture (USDA), without a formal warning or offering Maine an opportunity to respond, froze federal funding for school meal programs, a decision that was reversed after a federal judge found that the USDA had not followed proper procedures (D’Alessio, 2025). In March of 2025, the acting commissioner of the Social Security Administration issued an order that would have required parents of newborns in Maine to register their children at a federal office rather than in a hospital as punishment for an alleged failure to comply with Title IX. That order was quickly rescinded (Hussein & Whittle, 2025).
While the USDOJ’s case against the state of Maine proceeds to trial in April of 2026 and U.S. Department of Education investigations into transgender athlete policies and laws in states like California and Illinois continue (D’Souza, 2025; Masterson, 2025), the U.S. Department of Energy quietly initiated the revision of some long-standing civil rights protections under Title IX, Title VI, and Section 504 of the Rehabilitation Act (Alonso, 2025) through direct final rule processes (DFRs). A DFR process is designed to facilitate non-controversial rulemaking on an expedited timeline with an abbreviated notice and comment period. Ordinarily the DFR process introduces minor editing but not substantive changes in rules (Alonso, 2025).
The targeted Title IX athletics rule that the Department of Energy seeks to revise pertains to a provision in 10 CFR 1042.450 that recognizes that schools may sponsor a team for athletes of one sex and not the other. In circumstances where opportunities for one sex have been limited, a member of the excluded sex may be permitted to try out for the sport, although there are exceptions for contact sports including boxing, wrestling, rugby, ice hockey, football, and basketball. What this means is if a school sponsors a men’s golf team and not a women’s golf team, and in situations where athletic opportunities have been limited for women, women are permitted to try out and if they earn a spot, compete on the team. Under certain circumstances, boys or men might seek to play on girls’ or women’s teams (Darowski, 2005; Gomes v. Rhode Island Interscholastic League, 1979). For 50 years, this provision has been in the Title IX regulations (U.S. Department of Health, Education, and Welfare, 1975).
The Department of Energy proposes to rescind this rule because it is not in alignment with the direction in President Donald J. Trump’s Executive Order entitled “Keeping Men Out of Women’s Sports” which “oppose[s] male competitive participation in women’s sports more broadly, as a matter of safety, fairness, dignity and truth.” According to David Taggart (2025), in the Office of General Counsel with the U.S. Department of Energy, the proposed deletion of this rule is reflective of the Administration’s position that “Such athletics rules ignore differences between the sexes which are grounded in fundamental and incontrovertible reality while also imposing a burden on local governments and small businesses who are in the best position to determine the needs of their community and constituents”.
The existing provision does offer a challenge to the assertion that the differences between the sexes are so great that there are no circumstances under which girls and boys, men and women should be permitted to fairly and safely participate on the same playing field, court, pool, track, or other athletic venue. More specifically, it challenges the underlying assumptions behind the “Keeping Men Out of Women’s Sports” Executive Order. The plain fact of the matter is that there is a rich tradition of girls and women playing on boys’ and men’s teams. Such provisions have been made without undue burden on school districts and institutions of higher education. And for girls and women, who are often underrepresented in terms of athletic opportunities, getting a chance to play on a boys’ or men’s team was their only opportunity to play their sport. By way of example, based on an athletic participation survey conducted by the National Federation of State High School Associations, 1300 girls played on boys’ baseball teams in the 2023-2024 academic year (Thames, 2024).
The provision in 10 CFR 1042.450 that some have argued needs to be rescinded is the contact sport exemption (Epstein, 2022). Those who follow high school and college sports are aware that girls and women have competed in all of the sports listed as contact sports. In some cases, schools simply don’t invoke the contact sport exemption. In other cases, girls and women sought their place on a team under the Equal Protection Clause of the 14th Amendment. In either case, the existence of girls and women on boys’ and men’s teams puts to rest the stereotypical notion that they cannot play these sports, and that they cannot play them with and against boys and men. Rescinding this provision resurrects old sexist stereotypes that suggest that girls and women are incapable of ever competing with boys and men and rewrites the history of girls and women on boys and men’s teams.
The deadline for comments on the proposed rescission of the rule was Monday, June 16, 2025. As specified in the announcement regarding the proposed change, unless there are significant adverse comments made, the rule will be rescinded on July 15, 2025. According to the Regulations.gov site where comments were to be posted, 21,264 were received by the 11:59pm (EST) deadline. The site does not seem to have a feature that allows a review of the comments received.
References
D’Alessio, Q. (2025, April 11). Judge orders USDA to restore Maine school meal funding. The Maine Campus. https://mainecampus.com/category/news/2025/04/judge-orders-usda-to-restore-maine-school-meal-funding/
Darowski, A. S. (2005). For Kenny, who wanted to play women’s field hockey. Duke Journal of Law and Policy. https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1094&context=djglp
D’Souza, K. (2025, June 3). California Department of Education urges school districts to resist Trump’s threats over transgender athletes. EdSource.org. https://edsource.org/2025/california-department-of-education-urges-school-districts-to-resist-trumps-threats-over-transgender-athletes/733933
Epstein, A. (2022). Sarah and Sam Make Contact: Thoughts on the Contact Sports Exception and Title IX at 50. Marquette Sports Law Review. https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1842&context=sportslaw
Gaskins, C., & Gray News Staff. (2023, September 28). Middle school girl plays quarterback, makes state football all-star team. WITN.com. https://www.witn.com/2023/09/28/middle-school-girl-plays-quarterback-makes-state-football-all-star-team/
Hussein, F., & Whittle, P. (2025, April 2). Social Security’s acting leader faces calls to resign over decision to cut Maine contracts. Associated Press. https://apnews.com/article/social-security-benefits-retirement-trump-mills-transgender-100540d59a1a8a2c919397ce047e5a75
Masterson, M. (2025, March 24). CPS, Illinois State Board of Education Under Federal Investigation Over Title IX Violation Allegations. WTTW.com.https://news.wttw.com/2025/03/24/cps-illinois-state-board-education-under-federal-investigation-over-title-ix-violation
Quilantan, B. (2025, June 16). Energy Department seeks to roll back Title IX protections for women’s, education programs. Politico.com. https://www.politico.com/news/2025/06/16/energy-department-sex-discrimination-trans-students-athletics-00408170
Regulations.gov. Nondiscrimination on the Basis of Sex in Sports Programs Arising out of Federal Financial Assistance. https://www.regulations.gov/document/DOE-HQ-2025-0016-0001
Taggart, D. (2025, May 16). Nondiscrimination on the Basis of Sex in Sports Programs Arising Out of Federal Financial Assistance. Announcement regarding proposed rescission of rule. Federal Register. https://www.federalregister.gov/documents/2025/05/16/2025-08557/nondiscrimination-on-the-basis-of-sex-in-sports-programs-arising-out-of-federal-financial-assistance
Thames, A. (2024, November 13). Women’s baseball players could soon have a league of their own again. Associated Press. https://www.ap.org/news-highlights/spotlights/2024/womens-baseball-players-could-soon-have-a-league-of-their-own-again/
U.S. Department of Health, Education, and Welfare. (1975). Title IX regulations. 34 CFR Section 106.41 (2003).
U.S. Department of Health, Education, and Welfare. (1979). A Policy Interpretation: Title IX and Intercollegiate Athletics. https://www.ed.gov/about/offices/list/ocr/docs/t9interp.html
