What is the Title IX Special Investigations Team?
| | Title IX
The Trump administration recently announced the launch of a “Title IX Special Investigations Team.” Given the flurry of declarations and the push to follow through on campaign promises, it can be challenging to ascertain the effect an initiative like this will have.
Title IX enforcement has been fraught with uncertainty in the past 12+ months, and the Administration asserts that the U.S. Department of Education is facing a “staggering volume” of Title IX complaints. Although little official information has yet been released about the operation of the Special Investigations team, the Administration’s announcement and early Executive Orders provide some indication of the objectives the initiative will be trying to meet.
Department Collaboration
According to the Department’s press release, the Title IX Special Investigations Team is a “specialized” group of investigators drawn from the Education Department and Department of Justice to streamline Title IX investigations through the application of a “rapid resolution investigation process.” Creation of the Special Investigations Team is also aimed at facilitating investigations by forging collaborations between the Education Department and the Department of Justice so that investigations will be conducted in a way that ultimately prepares matters for enforcement by the Department of Justice.
The Special Investigations Team is expected to include:
- Investigators and attorneys from the Department of Education Office for Civil Rights
- Division Attorneys from the Department of Justice Civil Rights Division
- General Counsel Attorneys from the Department of Education
- Staff from the Education Department Student Privacy Policy Office
- One or more Federal Student Aid Enforcement investigators
The announcement did not indicate the size of the Special Investigations Team or when streamlined enforcement procedures would begin.
Stated Goals of the Title IX Special Investigations Team
While the Department of Education did not formally explain the role of the Special Investigations Team, the agency reported that the initiative was created “to ensure timely, consistent resolutions to protect students, and especially female athletes, from the pernicious effects of gender ideology in school programs and activities.”
The first part of that statement could potentially indicate that the Team will work on a variety of enforcement actions, but the second part makes it clear that there will be a focus on accommodations made for transgender students, particularly in the context of athletics. Secretary of Education Linda McMahon announced that the Special Investigations Team would “benefit women and girls across this nation who have been subjected to discrimination and indignity in their educational activities.” She added that it has been a priority for the Administration to enforce Title IX in a way that protects female students and athletes.
To justify the creation of the Team, she explained that the Department of Education’s Office for Civil Rights traditionally has taken months and sometimes years to complete investigations. The Title IX Special Investigations Team is intended to speed the process of finishing investigations and to ensure consistent results.
Then she specifically stated an intent to stop institutions from “denying women’s civil rights” by allowing “men to compete in women’s sports and use women’s intimate facilities.” Attorney General Pamela Bondi echoed McMahon’s statements, noting that the collaboration between the Departments of Education and Justice enables attorneys to take “comprehensive action when women’s sports or spaces are threatened and use the full power of the law to remedy any violation of women’s civil rights.”
The ”full power of the law” has become a complex and controversial subject in recent years as presidential administrations have increased their use of executive orders, administrative agencies have issued guidance to establish policies and set remedies, and judges have taken proactive stances on policy issues. If the task force acts rapidly to clear a backlog of cases, it will be interesting to see how many of the decisions will be appealed through administrative and judicial channels.
The Executive Orders That Will Drive the Title IX Special Investigations Team
Although the statement of the Education Secretary makes it clear that the Special Investigations Team will be working to promote the agenda set forth in two executive orders issued in the early days of the Administration, the Department of Education press release also specifically refers to those executive orders in a background statement. So, to understand the driving force that will be motivating the Team, it is necessary to review those executive orders.
Executive Order 14168 – “Recognizing Women Are Biologically Distinct From Men”
On January 20, 2025—Inauguration Day—President Trump issued Executive Order 14168 entitled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” This directive dismisses the concept of gender ideology and rejects the recognition of gender identity. The order states that for purposes of federal law, the term “sex” will be interpreted to “refer to an individual’s immutable biological classification as either male or female.”
In turn, the definitions of male and female are defined according to an individual’s cellular status at conception. A female under this definition is a person belonging to the sex that produces the large reproductive cell, while a male is defined as a person belonging to the sex that produces the small reproductive cell. By contrast, the Order explains that gender identity “does not provide a meaningful basis for identification and cannot be recognized as a replacement for sex.” The Order even rejects the word “gender,” insisting that federal employees acting in an official capacity should use the term “sex” rather than “gender” in federal documents.
This denunciation of gender identity as a protected characteristic clearly contrasts with federal policies promulgated under the previous presidential administration and many judicial opinions. While it is certainly common for an incoming administration to reverse policies set forth by the previous administration, the executive branch of government does not have the ability to overturn judicial rulings.
For instance, the Title IX rules released by the Biden Administration in April of 2024 extended the anti-discrimination protections of Title IX to prohibit discrimination on the basis of gender identity, sexual orientation, sex stereotypes, and sex characteristics. Before the new rules took effect, the Department of Education had already issued guidance effectively extending Title IX to cover these protected characteristics. The Trump Administration can reverse these policies through executive orders or departmental guidance, and through the administrative rulemaking process.
However, in 2020, the U.S. Supreme Court ruled in Bostock v. Clayton County that anti-discrimination provisions of Title VII that prohibit discrimination on the basis of sex also prohibit discrimination on the basis of sexual orientation and transgender status. An executive order cannot overturn this ruling with respect to Title VII, although at this point, the order can affect the interpretation of Title IX.
Executive Order 14201 – “Keeping Men Out of Women’s Sports”
The second executive order referred to in the press release about the Title IX Special Investigations Team is #14201 entitled (with unusual brevity) “Keeping Men Out of Women’s Sports.” This order asserts that schools and athletic associations have permitted “men” to compete in women’s sports and that such practice is not only dangerous and unfair, but that it “denies women and girls the equal opportunity to participate and excel in competitive sports.”
The Administration points out a fact that no one would deny, that educational institutions receiving federal funding are not permitted to deny equal opportunities to women when it comes to participation in sports. Then the order concludes that educational programs that “deprive women and girls of fair athletic opportunities” will no longer receive federal funding. The Administration also announces that as a general policy, it will “oppose male competitive participation in women’s sports more broadly,” although there is no current enforcement mechanism for this policy.
The issue, of course, is the definition of women and men applied by educational institutions and athletic associations. This executive order refers to definitions in Executive Order 14168, which would prohibit anyone not identified as female at birth from competing in women’s athletics. Regardless of whether an athlete born male simply chooses to identify as female or whether they have had reassignment surgery and been taking hormones for years, that athlete is not permitted to compete in women’s sports at academic institutions receiving federal funding.
The Role of the Title IX Special Investigations Team
In light of the reference to the above executive orders, there is little question of the policy approach that will be applied to pending complaints regarding transgender participation in women’s athletics or transgender use of women’s facilities such as locker rooms and restrooms on campus. One question at this point is whether the Team will handle other pending complaints or focus solely on transgender issues.
Advisors are urging academic institutions to revise their policies and training materials to comply with the Administration’s guidance regarding gender identity. It seems likely, however, that some institutions will refuse to do so and will seek to have their approach upheld in federal courts that agree with their ideology.
Enforcing Title IX Rights in All Circumstances
Every change in policy presents new opportunities. Some individuals gain new avenues to enforce their rights, while others gain momentum to challenge current policies through judicial channels. Attorneys who work to uphold the Title IX rights of students, faculty, and staff know that there are always ways to find justice when you understand the options and know the issues intimately.
At Nesenoff & Miltenberg, we have been dedicated to upholding the ideals of Title IX for decades, and regardless of the political climate, we work to protect those whose rights have been infringed, either through lax enforcement or overzealous prosecution in violation of due process rights. If you have a Title IX or other campus matter of concern, we invite you to schedule a confidential consultation online or call us at 212-736-4500 to learn how we may be able to assist.