President Trump Signs Executive Order Requiring Sex-Based Classifications

On January 20, 2025, one of President Trump’s first actions as the president of the United States was signing an Executive Order proclaiming that the U.S. government only recognizes two sexes: male and female. The order goes on to state that the federal government is encouraged to enforce “sex-protective laws to promote [the] reality” that “sexes are not changeable.” To that end, the order defines “sex” as an individual’s “biological classification as either male or female” and explicitly states that “sex” does not include gender identity. It also states that an individual’s gender identity “cannot be recognized as a replacement for sex.”

The executive order also directs federal agencies to enforce laws in a manner that “protect[s] men and women as biologically distinct sexes.” The order requires official agency documents and communications to reflect this directive. Accordingly, the order prohibits federal agencies from requesting an individual’s gender identity and, instead, only allows agencies to ask whether an individual’s sex is “male” or “female.” This includes official government documents, such as passports and visas, which is in direct contrast to previous options under the Biden administration that allowed individuals to select “nonbinary,” “other,” and/or “X” when identifying gender on federal documents.

The order also prohibits the use of federal funds to “promote gender ideology” and encourages taxpayer-funded spaces, such as prisons, migrant shelters, and rape shelters to move individuals into spaces that align with their sex assigned at birth, as opposed to their gender identity. It further orders agencies to “take all necessary steps, as permitted by law, to end the Federal funding of gender ideology.”

So, what does this executive order mean for schools?

This executive order gives insight into the 2025 Trump administration’s position on whether discrimination based on gender identity will continue to be protected under Title IX’s implementing regulations. As we detailed in a prior alert, the 2024 Title IX regulations have been vacated and, therefore, no longer apply in any jurisdiction across the U.S. Accordingly, it is likely that the regulations that were previously in effect (here, the 2020 Title IX regulations) are back in effect at this time.  If you recall, the 2020 Title IX regulations did not include definitions for the terms “sex”, “sex discrimination,” “gender identity,” or “sexual orientation.” Under the 2020 Trump administration, discrimination based on gender identity remained protected under Title IX. This executive order, however, signals that the 2025 Trump administration no longer takes that position.

In fact, the order explicitly targets the “prior Administration’s” interpretation that the U.S. Supreme Court’s decision in Bostock v. Clayton County did not affect protections for individuals based on gender identity under Title IX. The order explicitly directs the Attorney General to issue immediate guidance indicating that the prior interpretation of Bostock, which required gender identity-based access in single-sex spaces under Title IX, is “legally untenable.” Instead, the order requires guidance that encourages sex-based distinctions in activities.

While the executive order itself does not explicitly alter any portions of Title IX or its implementing regulations, it is a clear indication that the 2025 Trump administration does not consider gender identity to be protected under Title IX. We will continue to monitor for the Attorney General’s guidance on this issue, as directed by the executive order, and will provide updates as they become available.

Despite these changes at the federal level, at the State level, the Illinois Human Rights Act still protects individuals from discrimination and harassment based on gender identity and sexual orientation. This means that educational institutions in Illinois are still required to investigate and address complaints of discriminatory treatment based on gender identity and sexual orientation. It remains unclear at this time how the provisions of the Illinois Human Rights Act will interact with the mandates in this executive order and any actions taken to enforce it.

If your school receives a complaint of discrimination or harassment based on gender identity, you should consult with your legal counsel regarding your obligations for responding, consistent with State and federal law. We will continue to closely monitor any activity and provide updates on the legal landscape in this area. For further guidance specific to your school or District, please contact any Franczek attorney.