Does President Trump's Executive Order 14201 on transgender student athletes override Minnesota's anti-discrimination law, and can a Minnesota school district comply with the order without violating the Minnesota Human Rights Act?

Plain-English summary

In early February 2025, President Trump signed Executive Order 14201, titled "Keeping Men Out of Women's Sports." The order directs the Secretary of Education to prioritize Title IX enforcement against schools and athletic associations that let students assigned male at birth participate in women's sports categories, and tells agencies to "rescind funding" from programs that do not comply. Within two weeks, Erich Martens, the Executive Director of the Minnesota State High School League (MSHSL), asked the Minnesota Attorney General whether the order overrode Minnesota's anti-discrimination law and whether a Minnesota school or the MSHSL could face state-law liability for complying with it.

AG Keith Ellison's office answered both questions with the same conclusion: the order does not displace Minnesota law, and complying with it would put schools in violation of the Minnesota Human Rights Act (MHRA).

The preemption analysis turned on a basic point about how executive orders work. A federal action can preempt state law only if it has the force and effect of law. Citing the U.S. Supreme Court's decisions in Crosby v. National Foreign Trade Council and Wyeth v. Levine, the AG explained that an executive order carries the force of law only when it is issued pursuant to a statutory mandate or an express delegation of authority from Congress. The Eighth Circuit's 1975 decision in Independent Meat Packers Association v. Butz makes the same point.

The Executive Order 14201 does not satisfy that condition. It references Title IX, but Title IX itself does not authorize the President to unilaterally rescind federal funding from educational programs or to issue rules with the force of law. Congress reserved that power to the federal agencies that disburse education funding, and required a formal process under 20 U.S.C. § 1682: an express finding on the record, after an opportunity for a hearing, of a failure to comply with a properly issued Title IX regulation. The President cannot short-circuit that process by directive. So the order is, in legal effect, a policy statement of the executive branch, not binding federal law that could displace Minnesota's anti-discrimination protections.

The second question moved to substantive state law. The MHRA declares that the right to full utilization and benefit of an educational institution, free from discrimination, is a civil right. It bars educational institutions from discriminating "in any manner" against a student because of gender identity, which the statute defines as a person's inherent sense of being a man, woman, both, or neither, regardless of assigned sex at birth or sex characteristics. The definition of "discriminate" expressly includes to "segregate or separate."

The AG then applied that framework to the conduct the executive order would require. Excluding transgender girl athletes from girls' extracurricular activities (or transgender boy athletes from boys' activities) separates and segregates those students from their peers based solely on gender identity. That is the exact harm the MHRA's plain text prohibits. The Minnesota Court of Appeals reached a parallel conclusion in N.H. v. Anoka-Hennepin School District No. 11 (2020), holding that schools must permit transgender students to use locker rooms consistent with their gender identity under the MHRA.

The conclusion: a Minnesota school district or the MSHSL that complies with EO 14201 by barring transgender athletes from teams matching their gender identity would face MHRA liability. The order does not provide a federal-law shield because it does not have the force of law in the first place.

What this means for you

For Minnesota school district superintendents and athletic directors: the MSHSL did not get permission from the AG to comply with EO 14201; it got the opposite. Continuing your existing MSHSL-aligned policies that allow transgender students to participate in extracurricular activities consistent with their gender identity is the path that keeps your district within the MHRA. Adopting a categorical exclusion to comply with the federal executive order will create state-law exposure to enforcement actions by the Minnesota Department of Human Rights and to private MHRA suits by students and families. If your district is feeling pressure from federal funding threats, the AG's analysis is the legal basis for declining to change policy on the strength of the executive order alone.

For school board members weighing a policy change in response to federal pressure: read this opinion before voting. The state AG has formally taken the position that compliance with the executive order, on these facts, violates state law. That position will be highly persuasive in any MHRA enforcement proceeding and in any related litigation.

For MSHSL administrators: the AG opinion is addressed to you. Your existing eligibility framework that permits participation consistent with gender identity stands as the MHRA-compliant baseline. A policy change to exclude transgender athletes in response to EO 14201 would create MHRA exposure for the League and your member schools.

For families of transgender student athletes: under current Minnesota law, your student has the right to participate in extracurricular activities consistent with their gender identity. If a Minnesota school or the MSHSL excludes the student in response to the federal executive order, this AG opinion is the basis for an MHRA complaint to the Minnesota Department of Human Rights or a civil suit. The Anoka-Hennepin appellate decision provides parallel precedent in the locker-room context.

For families of cisgender student athletes who support exclusion policies: the AG's opinion does not preclude you from advocating for policy change through the legislative process. What it forecloses is unilateral school-level or MSHSL-level adoption of an exclusion policy based on the federal executive order alone. The MHRA's current text would have to be amended by the Minnesota Legislature, or the order would need to be re-issued with congressional authorization that gives it the force of law, for the analysis to change.

For school district legal counsel: do not treat this opinion as the end of the inquiry. Federal litigation challenging the executive order is active and could produce different facts about what authority the order actually carries. Federal agency action implementing the order (formal Title IX rulemaking, a Department of Education enforcement matter against a specific district) could carry preemptive weight where the bare order does not. Monitor for both. But on the strength of the executive order itself, this AG opinion is the controlling read of Minnesota law.

For civil rights attorneys taking MHRA cases: the opinion is a useful citation in pleadings and demand letters. The pairing with N.H. v. Anoka-Hennepin gives you both AG and appellate authority for the proposition that gender-identity discrimination in school services and segregated facilities is unlawful under the MHRA.

Common questions

Q: Can the President rescind federal education funding by executive order alone?
A: No, per this AG opinion. The AG cites 20 U.S.C. § 1682, which requires "an express finding on the record, after opportunity for hearing, of a failure to comply" with a properly issued Title IX regulation before federal education funding can be terminated. That process is reserved to the federal agencies that disburse the funding, not the President.

Q: Does this opinion mean Minnesota schools can ignore the executive order?
A: The opinion does not say "ignore" the order. It says the order does not have the force of law and does not preempt the MHRA. A school choosing to comply with the order by excluding transgender athletes would violate the MHRA on the AG's reading. A school maintaining current MHRA-compliant participation policies is not violating the executive order in any legally enforceable sense because the order itself does not impose enforceable legal duties on schools directly.

Q: What if the federal Department of Education tries to enforce Title IX against a Minnesota school for letting transgender athletes participate?
A: That is a federal enforcement matter and would proceed under the 20 U.S.C. § 1682 framework, with notice, hearing, and opportunity to challenge. It would not flow automatically from the executive order. If and when a specific enforcement action begins, the school would have a separate set of federal procedural rights and could litigate the merits of the Title IX interpretation.

Q: Does the MHRA's gender-identity protection apply to school districts that do not belong to MSHSL?
A: Yes. The MHRA applies to all educational institutions in Minnesota, public and private, including those that do not belong to MSHSL. The opinion is addressed to MSHSL because MSHSL submitted the request, but the substantive MHRA analysis applies to every Minnesota school.

Q: Does this opinion address whether a transgender athlete can use a locker room of their gender identity?
A: Not directly. The opinion focuses on extracurricular activity participation. The locker-room question was addressed by the Minnesota Court of Appeals in N.H. v. Anoka-Hennepin Sch. Dist. No. 11, which the AG cites. That decision held that schools must permit transgender students to use facilities consistent with their gender identity.

Q: Is the MHRA's "gender identity" definition the same as Title IX's "sex"?
A: They are different statutes with different definitions and a different scope of analysis. The MHRA explicitly defines gender identity as a protected class independent of assigned sex. Whether Title IX's prohibition on "sex" discrimination includes gender identity is the subject of separate federal litigation, including questions about how the U.S. Supreme Court's reasoning in Bostock v. Clayton County (an employment case under Title VII) translates to Title IX. The Minnesota AG's opinion sidesteps that federal question by focusing on the MHRA, which has its own express text on gender identity.

Q: Does AG Ellison have authority to issue an opinion on federal preemption?
A: Yes. Minnesota statutes authorize the AG to give advisory opinions on legal questions submitted by certain officials and entities, including those running state-recognized activities like MSHSL. The opinion is advisory, not binding on the courts, but Minnesota courts treat AG opinions as persuasive authority on questions of Minnesota law. On the federal preemption question, the AG is interpreting federal doctrine that any Minnesota court applying state law would also have to address.

Q: Could a future Minnesota AG, or the Legislature, change this conclusion?
A: A future AG could issue a different opinion, but it would not override the MHRA's plain text. The Legislature could amend the MHRA to remove gender identity protection or add an exception for athletics, which would change the analysis on the second question. Neither change has occurred as of this opinion.

Background and statutory framework

The Minnesota State High School League is a nonprofit voluntary association. Under Minn. Stat. § 128C.01, subd. 1, school boards may delegate control of extracurricular activities to it. The MSHSL itself does not receive state or federal funding. Its 624 member schools, however, do receive both state and federal funding.

Executive Order 14201, signed by President Trump on February 5, 2025, directs the Secretary of Education to prioritize Title IX enforcement against schools (and athletic associations) that deny female students an equal opportunity to participate in women's-category sports by requiring them to compete with or against males. The order further instructs all executive departments and agencies to review grants to educational programs and "where appropriate, rescind funding" to non-complying programs.

The Minnesota Human Rights Act, Minn. Stat. § 363A.01 et seq., declares that the full utilization of, or benefit from, any educational institution without discrimination is a civil right. The MHRA's purpose, per Minn. Stat. § 363A.04, is to be "liberally construed" to secure freedom from discrimination. Its educational-institution prohibition at Minn. Stat. § 363A.13, subd. 1 bars discrimination "in any manner" in the full utilization or benefit of an educational institution based on, among other protected classes, gender identity.

Two definitions in the MHRA do the operative work:
- "Gender identity," per Minn. Stat. § 363A.03, subd. 50, means "a person's inherent sense of being a man, woman, both, or neither. A person's gender identity may or may not correspond to their assigned sex at birth or to their primary or secondary sex characteristics."
- "Discriminate," per Minn. Stat. § 363A.03, subd. 13, includes to "segregate or separate."

Federal preemption doctrine governs the first question. Under Crosby v. National Foreign Trade Council, 530 U.S. 363, 372-73 (2000), federal law preempts state law where compliance with both is impossible or where state law obstructs a federal purpose. Under Wyeth v. Levine, 555 U.S. 555, 576 (2009), only federal action with the force of law can preempt. The Eighth Circuit's Independent Meat Packers Association v. Butz, 526 F.2d 228, 234 (8th Cir. 1975), holds that an executive order has the force of law only when issued pursuant to a statutory mandate or congressional delegation.

The Minnesota Court of Appeals' decision in N.H. v. Anoka-Hennepin School District No. 11, 950 N.W.2d 553, 562-65 (Minn. Ct. App. 2020) is the most direct on-point Minnesota authority. It held that the MHRA required a school district to allow a transgender boy to use the boys' locker room consistent with his gender identity, treating refusal as discrimination prohibited by the MHRA's educational provisions.

Citations and references

Statutes:
- Minn. Stat. § 8.07
- Minn. Stat. § 128C.01, subd. 1
- Minn. Stat. § 363A.02, subds. 1(5), (2), 1(b)
- Minn. Stat. § 363A.03, subds. 13, 50
- Minn. Stat. § 363A.04
- Minn. Stat. § 363A.13, subd. 1
- 20 U.S.C. § 1681 et seq. (Title IX)
- 20 U.S.C. § 1682
- Minn. Const. Art. I, § 2

Cases:
- Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000)
- Wyeth v. Levine, 555 U.S. 555 (2009)
- Independent Meat Packers Association v. Butz, 526 F.2d 228 (8th Cir. 1975)
- N.H. v. Anoka-Hennepin School District No. 11, 950 N.W.2d 553 (Minn. Ct. App. 2020)

Federal executive action:
- Executive Order 14201, "Keeping Men Out of Women's Sports" (Feb. 5, 2025)

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/1035-20250220.pdf

Original opinion text

Minnesota State High School League: Executive Order 14201 does not preempt Minnesota law. Prohibiting students from participating in extracurricular activities consistent with their gender identity would violate the Minnesota Human Rights Act.

1035
February 20, 2025

Erich Martens
Executive Director
Minnesota State High School League
2100 Freeway Boulevard
Brooklyn Center, Minnesota 55430

Re: Request for Advisory Opinion Pursuant to Minn. Stat. § 8.07

Dear Mr. Martens:

Thank you for your letter dated February 14, 2025, requesting an opinion from this Office on the legal effect of the Executive Order 14201 and whether compliance with the Executive Order would violate the Minnesota Human Rights Act.

BACKGROUND

The facts as you present them are as follows. The Minnesota State High School League ("MSHSL") is a nonprofit voluntary association which neither solicits nor receives state or federal funding. Its authority to regulate interscholastic activities is based on Minnesota Statutes section 128C.01, subd. 1, which authorizes school boards to "delegate control of extracurricular activities" to the MSHSL. Currently 624 member schools have delegated this control to MSHSL. These member schools do receive funding from state and federal sources.

The MSHSL, together with the Minnesota Association of School Administrators and the Minnesota Association of Secondary School Principals, requests guidance on Executive Order 14201 entitled "Keeping Men Out Of Women's Sports" (hereinafter Executive Order), which President Trump signed on February 5, 2025.

The Executive Order directs the Secretary of Education to "prioritize Title IX enforcement actions against educational institutions (including athletic associations composed of or governed by such institutions) that deny female students an equal opportunity to participate in sports and athletic events by requiring them, in the women's category, to compete with or against or to appear unclothed before males," (id. at § 3(a)(iii)) and further directs that "[a]ll executive departments and agencies (agencies) shall review grants to educational programs and, where appropriate, rescind funding to programs that fail to comply with the policy established in this order." Id. § 3(b).

QUESTIONS PRESENTED

The questions you raise are the following:

Question 1: Does the Executive Order supersede/preempt the Minnesota Human Rights Act, Minn. Stat. 363A.01, et. seq. ("MHRA") which prohibits discrimination in education based on gender identity particularly as it relates to participation in extracurricular activities offered by the League and its member schools?

Question 2: Does the Executive Order supersede/preempt the equal protection clause contained in Article 1, Section 2 of the Minnesota Constitution particularly as it relates to participation in extracurricular activities offered by the League and its member schools?

Question 3: If a school district complies with the Executive Order and prohibits a student from participation in extracurricular activities consistent with the student's gender identity, does this subject the district to claims for violations of the MHRA?

Question 4: If the League complies with the Executive Order and prohibits a student from participation in extracurricular activities consistent with the student's gender identity, does this subject the League to claims for violations of the MHRA?

We interpret your questions as follows: (1) Whether the Executive Order preempts Minnesota laws, including the MHRA and the equal protection clause in Article 1, Section 2 of the Minnesota Constitution, which prohibit discrimination in education based on gender identity particularly as it relates to participation in extracurricular activities offered by the MSHSL and its member schools, and (2) Whether compliance with the Executive Order by prohibiting students from participation in extracurricular activities consistent with their gender identity violates the MHRA.

SUMMARY OF CONCLUSION

The Executive Order does not have the force of law and therefore does not preempt any aspect of Minnesota law. Complying with the Executive Order and prohibiting students from participation in extracurricular activities consistent with their gender identity would violate the MHRA.

ANALYSIS

I. THE EXECUTIVE ORDER DOES NOT SUPERSEDE MINNESOTA LAW

Where a state law and federal law conflict, the federal law can preempt the state law if it is impossible to comply with both state and federal law, and the state law is an obstacle to the accomplishment of the full purpose of Congress in enacting the relevant federal law. Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372-73 (2000). In order to preempt state law, however, a federal action, whether taken by Congress, an executive branch agency, or by the President himself, must have the force and effect of law. Wyeth v. Levine, 555 U.S. 555, 576 (2009) ("[A]n agency regulation with the force of law can pre-empt conflicting state requirements."). An executive order will only have the force and effect of laws "when issued pursuant to a statutory mandate or delegation of authority from Congress." Indep. Meat Packers Ass'n v. Butz, 526 F.2d 228, 234 (8th Cir. 1975); cf. Crosby, 530 U.S. 374-75 (holding that Executive Order made pursuant to an "express investiture of the President with statutory authority to act for the United States" had force and effect of law such that it preempted a conflicting state statute).

The Executive Order at issue in your letter was not issued pursuant to a statutory mandate or express delegation of authority from Congress. Although the Executive Order references Title IX of the Education Amendments Act of 1972 ("Title IX"), 20 U.S.C. § 1681, et seq., Title IX does not authorize the President to issue directives with the force of law or to unilaterally rescind all federal funds from all educational programs that do not comply with presidential policy preferences. Contra Crosby, 530 U.S. 374 (finding authorization to act with the force of law where Congress authorized the President to take certain actions if he made specific findings). In fact, Congress made it clear that the President could not, on his own, rescind federal funding from an educational program, by including a statutory provision that mandates a process, controlled by the agencies empowered to provide federal funds to educational entities, for the termination of any such funding. See 20 U.S.C. § 1682 (requiring "an express finding on the record, after opportunity for hearing, of a failure to comply" with a properly-issued regulation implementing Title IX's prohibition against sex discrimination in educational programs).

Because the President does not have the authority to unilaterally rescind funding from educational programs, the Executive Order does not have the force of law and cannot supersede Minnesota state law.

II. MSHSL AND SCHOOL DISTRICTS WOULD VIOLATE THE MHRA IF THEY PROHIBIT STUDENTS FROM PARTICIPATING IN EXTRACURRICULAR ACTIVITIES CONSISTENT WITH STUDENTS' GENDER IDENTITY.

The MHRA declares that the full utilization of or benefit from any educational institution without discrimination is a civil right. Minn. Stat. § 363A.02, subds. 1(5) & (2). The Minnesota Legislature recognized that discrimination based on a person's membership in a protected class threatens the rights and privileges for all and "menaces the institutions and foundations of democracy." Id. at subd. 1(b). The MHRA is liberally construed to accomplish its remedial purpose of securing freedom from discrimination for persons in Minnesota. Minn. Stat. § 363A.04.

The plain language of the MHRA prohibits schools from discriminating against students based on their gender identity. In its section specific to educational institutions, the statute provides that "[i]t is an unfair discriminatory practice to discriminate in any manner in the full utilization of or benefit from any educational institution, or the services rendered thereby to any person because of . . . gender identity[.]" Minn. Stat. § 363A.13, subd. 1. The MHRA specifically defines "gender identity" to mean "a person's inherent sense of being a man, woman, both, or neither. A person's gender identity may or may not correspond to their assigned sex at birth or to their primary or secondary sex characteristics." Minn. Stat. § 363A.03, subd. 50. To discriminate includes to "segregate or separate." Minn. Stat. § 363A.03, subd. 13.

An educational institution violates the MHRA by discriminating in any manner in the services or benefits it offers a student because of the student's gender identity. This includes prohibiting transgender student athletes from participating in extracurricular activities, as such a practice inherently separates and segregates transgender student athletes from other student athletes based solely on their gender identity. Excluding transgender girl athletes from participating in girls' extracurricular activities, as the Executive Order directs, denies those students the full utilization and benefit of educational institutions in violation of the MHRA. See, e.g., N.H. v. Anoka-Hennepin Sch. Dist. No. 11, 950 N.W.2d 553, 562-65 (Minn. Ct. App. 2020) (holding that school must permit transgender student to use locker room that aligns with the student's gender identity under the MHRA).

Therefore, based on the plain language of the statute, educational institutions and the MSHSL would violate the MHRA by prohibiting transgender athletes from participating in extracurricular activities according to their gender identity.

Thank you again for your inquiry, and we hope this opinion is helpful to you.

Sincerely,

KEITH ELLISON
Attorney General

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