Trump’s Illegal War on the University of Pennsylvania

The Trump administration began stage two of its campaign against academe on March 19, when it announced on X that it had frozen $175 million in federal funding to the University of Pennsylvania because the university had allowed a transgender athlete, Lia Thomas, to join the women’s swim team in 2022. The announcement stated, “President Trump has promised to protect female athletes. He has threatened to rip federal funding away from any university that defies his executive order banning biological males from infiltrating women’s sports. And he is doing it.”

From the standpoint of Trump’s culture wars, the Penn case is a twofer: He gets to attack both the academy and the transgender community in one fell swoop. But it’s even more illegal than what the Trump administration did to Columbia University.

First, the administration has failed to follow any of the procedures the law requires before federal funding can be withdrawn. The government must first give notice to the university of a particular violation and afford it an opportunity to respond. It must attempt voluntary compliance going forward before any monetary penalty can be extracted, and it can withdraw funds only if future compliance cannot be achieved. (It’s been three years since Penn had a transgender athlete, and it follows the National Collegiate Athletic Association’s rules, which now bar transgender participation, so it is already “complying” with the Trump administration’s wishes.) Any funding penalty must be limited to the program that committed the violation. And no funds may be withdrawn without first notifying the relevant congressional committee and waiting 30 days.

The Trump administration did none of this. A tweet by an unnamed official on X does not come close.

Second, Penn’s action did not even conceivably violate Title IX, the law that prohibits denial of equal access to education “on the basis of sex.” Allowing Lia Thomas to compete did not deny any woman the opportunity to participate at all. Penn’s swim team has no tryouts and no limits on the number of participants. So including Thomas excluded no one.

On the contrary, had Penn denied Thomas the opportunity to compete because she was transgender, that would likely have violated Title IX. In Bostock v. Clayton County, the Supreme Court interpreted similar language in Title VII, which prohibits discrimination “because of sex” in employment, to mean that when an employer refuses to hire someone because she is transgender, it is discriminating “because of her sex.” In Bostock, a funeral home fired Aimee Stephens when she came out as transgender and stated her intention to come to work dressed as a woman. Had she been born female, the funeral home would have had no problem with her coming to work dressed as a woman. Thus, it treated her differently “because of her sex,” even if sex is defined as sex at birth. In effect, the court ruled, discriminating on the basis of transgender status is necessarily a subset of sex discrimination.

By the same reasoning, denying a transgender woman the opportunity to compete on the women’s swim team because she is transgender would discriminate against her “on the basis of sex,” in violation of Title IX. Several courts have so ruled. Penn’s allowing Thomas to swim thus violated no law.

Third, even if Penn had violated Title IX by allowing Lia Thomas to join the women’s team three years ago, pulling $175 million in federal funds from completely unrelated programs would still be an inappropriate remedy. The funding penalty must be tied to the program that committed the violation, and none of the grants the government has frozen support the swim team, or even Penn’s athletics program more generally.

So the Trump administration’s action against Penn is lawless. Like Columbia, Penn must decide whether to fight or capitulate. Like Columbia, it is a research university that depends heavily on federal funding, and that dependency may tempt it to seek compromise, not because it doesn’t have the law on its side, but because the government holds the purse strings and could retaliate against Penn in ways that could be difficult to prove as being connected to this action.

But appeasement should not be an option. In our constitutional democracy, the First Amendment protects academic freedom, and that requires government officials to respect the autonomy of a university’s decisions about student life, absent a violation of law. Here, the only violations are those of the Trump administration.