Published on: April 27, 2026
An ATIXA Tip of the Week by Dan Fotoples, J.D., M.A.
The Eighth Circuit’s recent opinion in Female Athletes United v. Keith Ellison, at first glance, appeared to be one of many lawsuits challenging K-12 policies permitting transgender athletes to participate in sports aligning with their gender identity. But, unlike other similar lawsuits, the court delivered an opinion that shed light on the role and influence of federal executive orders and federal guidance in areas of law that are unsettled, like Title IX and transgender students’ participation in athletics, and therefore clarified some longstanding confusion regarding the authority executive orders possess as contrasted with state law and associated state policies.
A Fairly Straightforward Case
An organization representing a group of female athletes, Female Athletes United (“FAU”), sued three Minnesota school districts, seeking preliminary injunctive relief against a policy of the Minnesota State High School League (“the League”) that permitted students to participate on athletics teams consistent with their gender identity. The League originally adopted the policy to reflect the Minnesota Human Rights Act’s nondiscrimination mandate. FAU advanced the theory that the League’s bylaws permitting participation based on gender identity constituted intentional discrimination under Title IX.
Most of the Court’s opinion was unremarkable and discussed different procedural questions and questions of liability under Title IX. What elevates this decision is not the underlying dispute or the court’s Title IX analysis, but the court’s rejection of FAU’s claim that executive orders and related federal guidance can transform unsettled Title IX questions into settled law and can provide a legal basis to obtain an injunction against policies that contradict federal guidance.
The Pecking Order: Law, Regulation, and Guidance
For practitioners navigating compliance obligations, this decision offers a critical opportunity to recalibrate understanding of legal authority, especially given some of the federal government’s inflated messaging and embellished assertions of legal authority over the last year.
At the highest level, federal statutes enacted by Congress establish binding legal standards. Federal regulations, when promulgated by federal agencies through formal rulemaking under the Administrative Procedure Act (APA), have the force and effect of law, too, meaning that courts enforce them and may show deference to regulatory text. State statutes, in turn, govern within their jurisdictions unless superseded or pre-empted by valid federal authority.
Executive orders and agency guidance, however, occupy a more complex and often misunderstood position. They may direct federal enforcement priorities and shape administrative interpretation, but they do not, in isolation, create new law or conclusively resolve unsettled legal questions. They lack the force and effect of law, even if signed by a president who insists that they are enforceable. Government agencies might enforce them, but courts do not, and overreach lawsuits questioning agency enforcement of Executive Orders and guidance will often be entertained by the courts.
The distinction between guidance and law is not merely academic or theoretical. In the instant case, the Minnesota Human Rights Act required nondiscrimination on the basis of gender identity, placing state law in apparent tension with Executive Order 14168 (“Defending Women from Gender Ideology”) and Executive Order 14201 (“Keeping Men Out of Women’s Sports”). The court’s analysis made clear that such tension cannot be resolved by executive fiat; it must instead be adjudicated through the courts or addressed through legislative action. Specifically, the court noted:
Executive guidance and agency findings, in and of themselves, do not reflect settled law… There can be no dispute that whether Title IX requires, permits, or prohibits the participation of transgender athletes in female athletics remains an open question of law. Until it is resolved by the judicial process, the Executive Branch’s views on that question may guide its own enforcement approach, but they cannot independently establish a “strong likelihood” that Doe’s participation violates Title IX or its implementing regulations.
Jurisdictional Reach and Persuasive Influence
As an appellate decision of the Eighth Circuit, this ruling is binding on federal courts within its jurisdiction, including Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.
Beyond those states, the opinion carries persuasive authority, meaning that courts elsewhere may consider its reasoning but are not obligated to adopt it. The extent to which other circuits embrace or distinguish this approach will be a critical development to monitor, particularly if other similar cases continue to emerge nationwide.
Why This Case Matters Now
This case does not resolve the question of transgender participation in athletics under Title IX. It also does not establish a definitive standard for compliance. It does not even foreclose further litigation on the underlying claims.
What it does, with precision and restraint, is reject an increasingly common attempt to shortcut the lawmaking process by treating executive orders as having the force and effect of law, on par with court decisions, federal laws, and state laws. In a regulatory environment characterized by rapid shifts, overlapping directives, and high-stakes enforcement signals, the Eighth Circuit’s clarification is noteworthy.
Practitioner Guidance: Pay Attention Without Overreacting
Title IX coordinators and administrators in K-12 and higher education should consider the following actions:
- Elevate the case internally by sharing it with legal counsel and institutional/district leadership as a relevant development in an evolving landscape
- Continue reviewing policies governing athletic participation, particularly in anticipation of forthcoming Supreme Court decisions in West Virginia v. B.P.J. and Little v. Hecox (expected in June)
- Resist premature changes (aka anticipatory compliance) based solely on this decision, recognizing that it represents one data point within a broader and still unsettled legal framework
- Prepare for rapid developments, as forthcoming rulings may necessitate more definitive action on relatively short timelines
The ATIXA Perspective
ATIXA will continue to monitor developments in this space, including anticipated Supreme Court decisions that may clarify or complicate institutional or district obligations.
Stay engaged through ATIXA’s webinars, podcast, and ongoing case law updates in the member listserv, where we translate emerging guidance into actionable compliance strategies. Revisit our podcast episode, “Listening to Oral Arguments is Less Reliable than Reading Tea Leaves,” to prepare for upcoming Supreme Court rulings. Finally, join us for our annual case law update at the ATIXA Annual Conference in Baltimore this fall.