Executive Order Issued Banning Transgender Athletes from Female Sports

03.03.2025

On February 5, 2025, the White House issued Executive Order 14201 (“Keeping Men Out of Women’s Sports”) (“Executive Order”). The Executive Order relies on the definitions of “sex,” “male” and “female” (among others) in Executive Order 14168 (“Defending Women from Gender Ideology and Extremism and Restoring Biological Truth to the Federal Government”) as an individual’s gender at conception.[1] The Executive Order states that under Title IX of the Educational Amendments Act of 1972 (“Title IX”), educational institutions receiving federal funding cannot deny women an equal opportunity to participate in sports. The Executive Order articulates that educational institutions which “deprive women and girls of fair athletic opportunities will have their federal funding rescinded due to violating Title IX.”

The Executive Order requires the U.S. Secretary of Education to promptly:

Continue to comply with the vacatur of the 2024 Title IX federal regulation previously issued in April 2024[2], and take other appropriate action to ensure this regulation does not have effect.
Take all appropriate action to “affirmatively protect all-female athletic opportunities and all-female locker rooms” in accordance with Title IX (including enforcement actions) and to bring regulations and policy guidance into line with Congress’ existing demand for “equal athletic opportunity for members of both sexes” by clearly specifying and clarifying that “women’s sports are reserved for women.”
Prioritize Title IX enforcement actions against educational institutions that require female students to participate in sports and athletic events against males or to appear unclothed before males.

The Executive Order also directs all federal executive departments and agencies to review grants to education programs and rescind funding for programs that fail to comply with the Executive Order. The U.S. Department of Justice is directed to provide all necessary resources, in accordance with the law, to relevant agencies to ensure expeditious enforcement of the policy established in the Executive Order.

Impact on California Education Code

The Executive Order appears to conflict with California law. Specifically, Education Code section 221.5(f) states: “A pupil shall be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil's records.” Guidance from the California Attorney General titled, “LGBTQ+ Discrimination Rights – Know Your Rights” states: “You have the right to play on a sports team that aligns with your gender identity.”

Impact on California Law for K-12 Schools

Furthermore, in 2013, the California Interscholastic Federation ("CIF"), which governs all interscholastic athletic competition in California’s public and private high schools, adopted Guidelines for Gender Identity Participation that states: “Participation in interscholastic athletics is a valuable part of the educational experience for all students. All students should have the opportunity to participate in CIF activities in a manner that is consistent with their gender identity, irrespective of the gender listed on a student’s records.”

In response to the Executive Order, the CIF publicly announced it will continue to follow California law to allow students to participate in school programs and athletic teams consistent with the student’s gender identity.

Impact on California Law for Higher Education

For higher education institutions, the California Community College Athletic Association bylaws permit transgender student athletes who have begun “hormonal treatment for gender transition” to compete consistent with their gender identity. For transgender female student athletes, the California Community College Athletic Association bylaws use the duration of hormonal treatment for gender transition in assessing whether the athlete can compete on a women’s team.

On February 6, 2025, in response to the Executive Order, the Board of Governors of the National Collegiate Athletic Association (“NCAA”), the national organization that governs intercollegiate athletics, announced that it voted to update its policy to limit competition in women’s sports to “student-athletes assigned female at birth.” However, the policy “permits student-athletes assigned male at birth to practice with women’s teams and receive benefits such as medical care while practicing." Additionally, men’s sports under the policy are “open to all eligible student-athletes.”

Recent Investigation Announced into the California Interscholastic Federation

In response to the CIF’s public announcement that it will continue to follow California law, on February 12, 2025, the U.S. Department of Education’s Office for Civil Rights (“OCR”) responded by announcing a directed investigation into CIF.[3] Craig Trainor, the Acting Assistant Secretary for Civil Rights at the U.S. Department of Education, reported that OCR’s regional office in San Francisco will conduct the investigation.

AALRR attorneys will be monitoring the progress of this investigation and will provide updates as new information is announced.

Conclusion

In general, the President’s executive power is vested by Article II of the Constitution, which requires that the President take specific actions to ensure “the laws be faithfully executed.” An executive order is a written directive that orders the government to take action to execute the law. Executive orders cannot override federal laws or statutes, but they can direct federal agencies to implement an existing statute in a particular way and/or to implement a new policy priority. Whether the federal Executive Order overrides state law is a complicated preemption issue.

In interpreting executive orders, courts focus on the text of the order. Notably, the Executive Order declares that “it is the policy of the United States to rescind all funds from educational programs that deprive women and girls of fair athletic opportunities, which results in the endangerment, humiliation, and silencing of women and girls and deprives them of privacy.” (Emphasis added.) The language of the Executive Order is not a declaration of existing or new law regarding participation of transgender students in athletics. Therefore, it is possible that a court could conclude that the Executive Order does not preempt California law. Additionally, while the Executive Order expresses the policy that the federal government may withhold funds, the State of California controls most school district funding for K12 districts and county offices of education, and a significant amount of funding for community college districts. As such, no matter which source of law (California law or the Executive Order) an educational agency follows, agencies are putting a source of funding at risk.

Until the conflict between the Executive Order and California state law is addressed by the courts or California legislature, we recommend agencies maintain the status quo with respect to following California law regarding transgender students’ participation in athletics, or initiate litigation to obtain binding guidance from a court of competent jurisdiction.

Should you have specific questions related to your agency’s response to the Executive Order, please contact the authors of this Alert or your usual AALRR counsel.

[1] Executive Order 14168 defines “female” as “a person belonging, at conception, to the sex that produces the large reproductive cell,” and “male” as “a person belonging, at conception, to the sex that produces the small reproductive cell.”

[2]AALRR’s Alerts on the decision in Tennessee v. Cardona which resulted in the vacatur can be found here: https://www.aalrr.com/newsroom-alerts-4099 (K-12) and https://www.aalrr.com/newsroom-alerts-4101 (Higher Education)

[3] In addition to investigating the CIF, the OCR is investigating the Minnesota State High School League, which also publicly announced its intention to follow Minnesota law pertaining to girls’ and women’s sports rather than the Executive Order.