Op. Atty. Gen. 1035

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
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Erich Martens, Executive Director
February 20, 2025
Page 2.

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
Erich Martens, Executive Director
February 20, 2025
Page 3.

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
Erich Martens, Executive Director
February 20, 2025
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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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