As ordens executivas da administração Trump tentam redefinir as questões de sexo e identidade de género nos desportos femininos

In January 2025, the Republican Party took control of both houses of Congress and the White House, portending seismic policy shifts around women’s and college sports, as previously reported here. Indeed, in the days immediately following his inauguration, President Trump issued a slew of Executive Orders, including Executive Order 14201 (Keeping Men Out of Women’s Sports) (February 5, 2025) (“EO 14201”). EO 14201 declared it would now be the policy of the United States to rescind funding from educational programs that permit transgender women or girls to compete on female sports teams or in female sports (the “EO 14201”).  

The Trump Administration’s Department of Education immediately followed EO 14201 by making two significant policy announcements concerning the application of Title IX of the Education Amendments of 1972 (“Title IX”), signaling that President is already following through on his campaign pledge to reset Biden-era rules and regulations regarding women’s sports.

Below, we review EO 14201 and subsequent developments to discern their meaning and assess their immediate and long-term impact on women’s sports.  

Key Provisions of the Executive Order

EO 14201 is effectively an extension into women’s sports of the Trump Administration’s interpretation of biological sex pursuant to Executive Order 14168 (Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government), which declared that it is the policy of the Unites States to recognize two sexes, male and female. EO 14201 states that participation of males (i.e., transgender women) in female sports “is demeaning, unfair, and dangerous to women and girls, and denies women and girls the equal opportunity to participate and excel in competitive sports.” Accordingly, it is the United States’ policy 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” and “oppose male competitive participation in women’s sports more broadly, as a matter of safety, fairness, dignity, and truth.”

In furtherance of its stated policies, EO 14201 includes directives to:

• The Department of Education (“DOE”), to (i) comply with a recent federal court ruling vacating the Biden Administration’s Final Rule that broadened Title IX’s prohibitions against discrimination on the basis of sex to include gender identity, (ii) take action, including through litigation, review of federal funding, rulemaking and policy, to protect “all-female athletic opportunities and all-female locker rooms” in the interest of securing the equal opportunity guarantees of Title IX and ensuring “women’s sports are reserved for women.”

• The Assistant to the President for Domestic Policy, to (i) engage with large athletic organizations and governing and harmed female athletes in support of EO 14201’s purpose, and (ii), convene State Attorneys General to identify best practices to define and enforce equal opportunity for women in sports.

• The Secretary of State – among other government officials –  to (i) engage in a variety of acts, including but not limited to rescinding support for programs that categorize competition based on identity rather than sex and promote international rules governing sport to protect a female sports category that is sex-based; (ii) review and adjust immigration policies that would admit males to the United States to participate in women’s sports, and (iii) take efforts to ensure that the International Olympic Committee amend standard to protect women and eligibility for Olympic competition is determined by sex, not gender identity or testosterone reduction.

Related Developments

The effects of EO 14201 were immediate.

On February 4, 2025, the DOE followed through and issued a “Dear Colleague” letter stating that it would be enforcing Title IX, not under the above-referenced, recently vacated 2024 Rule, but rather under the 2020 Rule, which was promulgated during the prior Trump Administration and aligns with EO 14201’s biological definitions of sex, excluding gender identity.

On February 6, 2025, and pursuant to EO 14201, the NCAA implemented a new participation policy limiting competition in women’s sports only to student-athletes assigned female at birth, while allowing student-athletes either (x) assigned male at birth, or (y) assigned female at birth who has begun gender-affirming hormone therapy (e.g., hormone therapy) to practice with women’s teams.

Less than a week later, on February 12, 2025, the Department of Education announced that it was rescinding guidance issued by the Biden DOE on January 16, 2025, which had warned NCAA schools that payments to student-athletes for use of their name, image, and likeness (“NIL”), whether distributed by schools or third parties (e.g., collectives or brands), qualified as “financial assistance” and must be distributed under Title IX on a nondiscriminatory basis. 

By rescinding that guidance, the Trump Administration appears to be signaling that the protection of women in sports does not extend to NIL pay and that disparities in NIL pay between male and female athletes will not trigger Title IX scrutiny, at least not from the DOE. Thus, at least in the eyes of Trump’s DOE, if and when schools ever begin making NIL or revenue-sharing payments to student-athletes, Title IX will not restrict them from directing those funds in disproportionate amounts to athletes in revenue-generating sports, which are predominantly male.

Looking Ahead

EO 14201 was unsurprising given President Trump’s stated positions during the 2024 election campaign. Also unsurprising is the wide-ranging responses to EO 14201, which will likely face legal challenges in implementation given conflicting state laws and deep political divide.  Its practical impact will likely differ based on level of competition (e.g., youth versus college sports) and whether federal funding is involved in any particular circumstance. In the meantime, organizations involved in women’s or girls’ sports would be wise to consider its potential impact on their polices and practices and keep an eye out for related developments.