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The team was, at the time, following National Collegiate Athletic Association rules and the prevailing interpretation of federal law. The swimmer, Lia Thomas, has long since graduated, and so have most of her teammates and competitors.
These factors didn’t matter to President Donald Trump, who’d run on a platform of excluding transgender people from activities and spaces matching their gender identities. In office, Trump quickly signed executive orders advancing that mission. Penn, his Education Department found the next month, had violated Title IX, the federal gender-equity law, “by permitting males to compete in women’s intercollegiate athletics and to occupy women-only intimate facilities.”
In the department’s strained Office for Civil Rights, cases can take years to resolve. But this was different. The federal government found Penn in violation of Title IX within a mere three months of announcing its investigation. It demanded Penn strip Thomas of her honors and apologize to each female athlete who lost out “for allowing her educational experience in athletics to be marred by sex discrimination.”
This case is emblematic of how the Trump administration is pursuing its agenda for transgender students: using Title IX to argue that accommodations for trans students deny equal opportunity to cisgender women, while reviving dormant controversies and leveraging threats to take away funding.
Critics have questioned the strategy’s long-term viability because it runs up against a hard legal fact: In many cases, the colleges Trump cited for violations were following the federal Title IX guidance at the time or were bound by judges’ decisions. Such were the stories at Penn, the University of Wyoming, Western Carolina University, and San Jose State University — all recent targets of the Trump administration.
But legal arguments can shrivel in the face of financial threats. With $175 million on the line, Penn acceded, striking an agreement with the administration Tuesday. The university essentially accepted all of the Education Department’s terms: It scrubbed Thomas’s name from its official records (though with an italicized caveat acknowledging that she had set the records “under eligibility rules in effect at the time”). It pledged to send “a personalized letter of apology to each impacted female swimmer,” according to a department press release. More broadly, it promised to prohibit transgender athletes from competing in women’s sports and to “adopt biology-based definitions for the words ‘male’ and ‘female’” consistent with the interpretation laid out in Trump’s executive orders.
In a statement, Penn’s president, J. Larry Jameson, said that while the institution’s policies during the 2021-2022 season accorded with the NCAA eligibility requirements at the time, “we acknowledge that some student-athletes were disadvantaged by these rules.”
“We have now brought to a close an investigation that, if unresolved, could have had significant and lasting implications for the University of Pennsylvania,” Jameson said. Penn’s funding has been restored.
As in other instances of colleges making deals with Trump’s activist administration, Penn’s settlement could have consequences for the president’s other targets, several of which don’t fit the elite mold established in antisemitism cases. But while institutions have tried to wriggle out of antisemitism scrutiny by showcasing all they’ve done to support Jewish students, there’s no winning when you’re being punished for following the rules at the time.
Trump’s strategy worked in changing public opinion about transgender rights. On his first day in office, he set about changing policy as well, signing an executive order proclaiming that the executive branch would only recognize two sexes, male and female.
Then, in early February, he issued another order prohibiting transgender girls and women from playing on school and college sports teams that matched their gender identity and from accessing women’s locker rooms.
The Trump administration has characterized the orders as correctives to the Biden administration’s overly permissive stance toward transgender students. The reality is more complicated.
Biden’s 2024 Title IX rule, which went into effect in fewer than half the states before a judge threw it out entirely, enshrined safeguards for transgender students. For example, it required schools and colleges to allow students to access facilities, like bathrooms, that matched their gender identity.
The discarding of that rule last year meant that Trump’s 2020 rule, which rescinded Obama-era guidance directing colleges to let students use bathrooms and locker rooms that conformed with their gender identity, went back into effect nationwide. Trump’s guidance did not protect against discrimination on the basis of gender identity. His new administration has not announced plans to propose another Title IX rule.
The athletics controversy that engulfed Penn demonstrates the challenges colleges faced in setting policy during a period of changing legal interpretations from the federal government and other organizations.
It is difficult to estimate the number of transgender athletes at colleges, but experts say it’s a small group. In December, Charlie Baker, the president of the NCAA, testified that he was aware of fewer than 10 transgender college athletes out of more than half a million competitors.
A few years earlier, that small group would have included Thomas, whose dominant performance in the 2021-22 season generated outrage in some corners and energized the movement to “save women’s sports.” Some opponents and teammates said Thomas had an unfair advantage. Several former Penn swimmers are suing Penn, Harvard, the Ivy League, and the NCAA for allowing Thomas to swim in the 2022 Ivy League women’s championships.
Adam Kissel, a visiting fellow in the Heritage Foundation’s Center for Education Policy, praised the Trump administration’s “reality-based approach” to Title IX that recognizes only two sexes and the advantages male athletes have over female ones.
“The evidence is completely clear that men are stronger than women, men are taller than women, men’s bodies are different than women’s bodies,” Kissel said. “No person who claims to be a woman who is a man should be participating in women’s sports.”
Still, Penn has maintained that it was “in full compliance with NCAA rules and Title IX policies in place at the time,” as the university’s president, J. Larry Jameson, put it in a March message acknowledging the suspension of federal contracts. In the 2010s, transgender athletes were generally allowed to compete on National Collegiate Athletic Association teams that matched their gender identity. In 2022, the NCAA voted for a sport-by-sport approach that called for transgender-participation guidelines to be determined by the national governing bodies of individual sports.
The Biden administration had planned a separate set of regulations to address transgender athletes. A draft of that rule released in 2023 proposed a framework for determining how and when transgender students could take part in sports — allowing for them to be excluded, for instance, if their participation created concerns about injuries. But the guidance was never issued.
After Trump’s February executive order on athletics, the NCAA quickly updated its policies. Regardless of their sex assigned at birth, the rules stated, all athletes could compete in men’s sports, but only athletes assigned female at birth could compete in women’s sports.
But Katie Eyer, a professor at Rutgers Law School and expert on constitutional law and LGBTQ rights, said there’s no question Thomas was eligible to compete under the rules of the time.
“There was nothing in the case law or in the regulations that would have even suggested to Penn that this was unacceptable,” she said, “but it was a very high-profile point of grievance among conservatives.”
How, then, can the Trump administration take action against the university?
“The response of the Trump administration would be, the statute has always required this, so it’s on you if you were not complying,” Eyer said. “I wholly disagree with that. … And there’s nothing in the regulations that would have given an institution a reason to think that, either — nothing really in the case law, either.”
The Chronicle asked the Education Department to respond to criticism that in Penn’s case, and in the case of others, colleges were being investigated after following contemporary regulations or court precedents. In a statement, Julie Hartman, a department spokeswoman, emphasized the department’s responsibility “to address current harms, future harms, and past harms.”
Hartman wrote that the department “is committed to reconciling these incidents, or alleged incidents, of sex-based discrimination that marred women and girls’ participation in educational activities, which were permitted without recourse under the previous administration.”
But Schneider acknowledges that the Education Department under President Barack Obama was also criticized for scoping old sexual-misconduct cases in investigating institutions’ Title IX practices.
“I think that’s a fair criticism here as well,” Schneider said. “This has all been mooted by people’s graduations. You’re not addressing an active case that you can actually remedy.”
The Trump administration’s most recent action revisits another dated incident, and points to an interest in monitoring sex-segregated spaces outside the realm of athletics. In June, the Education Department announced an investigation into the University of Wyoming for allowing a transgender woman, Artemis Langford, to join a campus sorority in 2022.
Like Penn, the Wyoming case generated backlash at the time. In 2023, members of the sorority chapter sued the national sorority, Kappa Kappa Gamma, for allowing the student into the group and giving her access to women-only living spaces. After a U.S. District Court judge dismissed the case and the 10th Circuit Court of Appeals sent it back to the lower court, the plaintiffs filed an amended complaint. That case is ongoing. Langford graduated in May.
Sororities’ and fraternities’ membership practices are exempt from Title IX, a legal carve-out that permits their single-sex status. But an Education Department press release said that once a sorority lets in male students — as, it said, the chapter at Wyoming did — it “is no longer a sorority by definition and thus loses the Title IX statutory exemption for a sorority’s single-sex membership practices.” In other words: It can now be found in violation of Title IX.
Kissel, at Heritage, said the administration’s end goal in pursuing the Wyoming investigation is unclear.
“The administration is right to note that once an organization stops being single-sex, it no longer has the exemption,” he said. “On the other hand, that means it becomes just another student organization which is allowed to be co-ed. So it’s allowed to exist either way.”
Eyer agreed: “Even if you said, yes, the definition of a sorority is that everybody must be assigned female at birth, and thus the exception doesn’t apply, that would just take us back to the baseline language of Title IX.”
As it took aim at Penn, the Education Department also announced an investigation into San Jose State University over the participation of a transgender woman on one of its sports teams. Last year, rival volleyball teams forfeited matches against San Jose State over the presence of Blaire Fleming, a transgender volleyball player. Some players and an assistant coach sued San Jose State and its conference over Fleming’s participation. (In April, The New York Times reported that Fleming, a senior, was at home in Virginia finishing classes.)
“We were notified earlier this year that the U.S. Department of Education had initiated a directed investigation related to Title IX in light of President Trump’s Executive Order with respect to athletics participation,” wrote Michelle Smith McDonald, a spokeswoman for San Jose State, in an email. “As with any federal inquiry, we have fully engaged with the process, followed established procedures, and remain transparent in our compliance with all applicable laws.”
In May, the U.S. Department of Education opened an investigation into Western Carolina University, alleging that it had refused to comply with Title IX and allowed transgender female students to enter sex-segregated spaces.
In a press release, the department cited reporting in National Review, which had obtained messages in which university administrators said they would continue to consider gender identity in assessing allegations of sex discrimination even after Trump’s executive order. The administrators cited the U.S. Court of Appeals’ Fourth Circuit decision in Grimm v. Gloucester County School Board, which stated that Title IX could protect students from school-bathroom policies that cut against their gender identities. The university also caught flak from the Trump administration for investigating a student who had recorded herself asking a transgender peer to leave the women’s bathroom.
In an email, Julia Duvall, a spokeswoman for Western Carolina, said the university acknowledged the investigation and believes its policies and procedures are compliant with Title IX and other laws.
Schneider said the Trump administration may be “hammering for” the Supreme Court to intercede.
“But to not so much as acknowledge the tension between the administration’s enforcement position and binding circuit-court precedent is unfair,” Schneider said, referring to Grimm.
Kissel said that if Congress were to write into law a common interpretation of Title IX’s application, colleges could avoid the “whiplash” that arises when presidential administrations switch up their civil-rights policies every four to eight years.
“That’s the overall issue,” he said. “The legislative branch should be making the rules, not the administrative state.”
But for now the administrative state is eager and active, and its settlement with Penn represents easily its biggest win to date. In some of its other, more legally questionable forays, success has been limited.
In February, the U.S. Department of Agriculture paused $100 million in funding to the University of Maine system over potential Title IX violations, following Trump’s terse exchange with the state’s Democratic governor, Janet Mills, over whether Maine would enforce his executive order on transgender athletes.
There was never any indication, or even an allegation, that transgender women were playing on campus sports teams. After Sen. Susan Collins, a Republican, negotiated with the Trump administration, the funding was quickly restored.
“They got this great headline out of it,” Schneider said of administration officials, “and then they just lost.”
