The Trump administration is trying to quickly and quietly roll back certain civil rights protections in schools by exploiting an administrative loophole and pushing the process through an unusual federal agency — the Department of Energy.
The Department of Energy has proposed a rule that would rescind a section of Title IX — the 1972 civil rights law that bars sex discrimination in federally funded school and athletics programs — that requires schools to expand athletic opportunities to the “underrepresented sex.” For decades the rule has allowed girls to try out for some boys sports teams, for example, when there is no equivalent team offered at their school and vice versa.
Dismantling this portion of the law would affect K-12 schools and universities that receive funding from the Energy Department. While the department is not the primary enforcer of Title IX, it does distribute funds to schools for scientific research and has to comply with federal regulations.
The agency claims the current athletic rules “ignore differences between the sexes which are grounded in fundamental and incontrovertible reality,” drawing from language in President Donald Trump’s Day 1 executive order that declares the federal government only recognizes two sexes, male and female.
The agency said the rule change aligns with Trump’s other order barring trans women and girls from participating on female sports teams, and “makes clear it is the policy of the United States to ‘oppose male competitive participation in women’s sports’…as a matter of safety, fairness, dignity and truth.’”
The process of rolling out the rule change is highly unusual, civil rights experts said. For one thing, it’s odd that the change, which will affect schools, is coming through the Energy Department instead of the Education Department.
But even more notable is that this particularly swift rulemaking process could set precedent for the White House to circumvent administrative law down the line.
“The really concerning part from my perspective is that this could essentially provide a blueprint for dismantling civil rights protections across the board,” Kel O’Hara, senior attorney for policy and education equity at Equal Rights Advocates, told HuffPost.
Under the Administrative Procedures Act, federal agencies are required to follow certain standards for formal rulemaking, which includes allowing the public to provide comments within 60 days of publishing the proposed rule. Agencies then review public comment and issue a final rule.
But in this case, the proposed changes to Title IX would be streamlined under a process called direct final rule, which is exempt from standard rulemaking processes. Agencies typically used DFRs to address non-controversial rules such as updating an agency’s forms or documents.
Because of the process the administration has chosen to use, the rule amending the decades-old civil rights law would take effect by July 15 unless there are a significant number of adverse comments submitted through the federal rulemaking website by Monday.
“This is not a minor or non-controversial change,” O’Hara said about the proposed changes to Title IX, noting that a new rule could affect transgender athletes in addition to opportunities for cisgender women and girls.
“This is continuing to reinforce the same stereotypes and narratives that are behind the trans sports ban,” they added
A rule like this would go through the Education Department, O’Hara said. But Trump has sought to shutter that department entirely and laid off significant numbers of its staff. The department’s Office for Civil Rights has already halted thousands of investigations into complaints and closed half of its civil rights enforcement offices.
“Part of what I see happening is this sense of overwhelm — there’s so much happening that it’s hard to follow. [The Trump administration] is trying to put these things through back doors which makes it hard for the people who normally keep an eye on these things to catch it,” O’Hara said.
As much as Education Secretary Linda McMahon has promised to “fight on every front to protect women’s and girls’ sports,” experts said this rule change would do little to help those athletes. Already the Education Department has launched more than a dozen investigations into schools, athletic institutions and states that have allowed transgender girls to compete alongside cisgender girls.
“I’m scratching my head for the motivation behind [rescinding the rule] because they mention the ‘Keeping Men Out of Women’s Sports’ executive order, but it won’t really apply in the vast majority of those cases because [the rule] only allows a person to participate in a sport of the other sex on two conditions,” James Nussbaum, an Indiana-based attorney focused on sports law told The Hill. “One, the school doesn’t already offer that sport for their sex, and two, they’re the ‘underrepresented sex’ historically, and that’s just not male sports at the vast majority of schools.”
The Energy Department’s rule on athletics is part of a bevy of 47 rule changes that have been proposed in an effort to save $11 billion and cut more than 125,000 words from the Code of Federal Regulations, the department said in a press release last month.
“While it would normally take years for the Department of Energy to remove just a handful of regulations, the Trump administration assembled a team working around the clock to reduce costs and deliver results for the American people in just over 110 days,” U.S. Secretary of Energy Chris Wright said.
This isn’t the first time the Trump administration has tried to quietly and quickly push through a rule that could have sweeping impacts. In March, the Department of Health and Humans Services proposed a rule that would remove requirements that insurance providers cover gender-affirming care as essential care, which advocates warned could make care more expensive for trans adults and children alike.
In his first term Trump also rarely paid much mind to the Administrative Procedures Act, and tried to use the process to push through much of his anti-immigrant agenda. Beginning in 2017, Trump tried to rescind the Deferred Action for Childhood Arrivals program several times, even though his team faced enormous pushback in the courts — and two-thirds of cases against Trump accused his administration of flaunting the APA.
