When Maine Gov. Janet Mills last month told President Donald Trump “We’ll see you in court,” she wasn’t being disrespectful or rude. She was simply stating a fact after he demanded that Maine follow his executive order restricting transgender student athletes participation in school sport. It’s an order, Mills, the state’s attorney general and many legal experts say conflicts with federal law.
A month after that White House exchange, the Trump administration has sent Maine proposals for fixing what it alleges are violations of Title IX, the 1972 federal law barring discrimination in education “on the basis of sex,” which federal courts have ruled extends to gender identity.
The U.S. Department of Health and Human Services’ Office of Civil Rights determined that the Maine Principals’ Association, which oversees high school sports in the state, and Greely High School in Cumberland had violated Title IX by allowing a transgender girl to compete on the Greely girl’s track team. The department previously found that the Maine Department of Education had violated the landmark civil rights act for the same reason. It did so after a very cursory investigation. The U.S. Department of Education made the same determination this week.
To resolve the supposed violations, the administration has now proposed that Maine change its policies around transgender high school athletes to bar what it calls “male athletes” from participating in girls sports. If the MPA policy is not changed, the HHS agreement would require the Maine Department of Education to prohibit schools from participating in MPA-administered events.
In addition to these changes, the Education Department resolution calls for Maine to restore the individual records that female athletes would have won if the recognition had not gone to transgender athletes who won in girls’ sports. It must also send letters of apology to these female athletes.
It gave Maine 10 days to submit to these “voluntary resolution agreements.”
Maine should reject these agreements.
No matter your thoughts and feelings about transgender athletes, Maine — and the federal government — must follow the law.
Current law, as interpreted by federal courts, is that Title IX protects the rights of transgender students. Further, the law has long been interpreted, and used, as a means to increase inclusion, not as a way to exclude people from education-related activities, including sports. Numerous legal scholars have called the Trump administration’s interpretation of the federal law “strange” and “wrong.”
Mills, who served as Maine’s attorney general before being elected governor, must also follow state law, which includes the Maine Human Rights Act. The act also protects the rights of transgender athletes. It would be up to state lawmakers, not the governor, to change state law.
Executive orders, on their own, do not change federal law. Instead, they must comply with the law. That’s why courts rejected former President Barack Obama’s order granting legal status to millions of immigrants and the first Trump administration’s efforts to withhold federal funding from what it called “sanctuary cities.”
If Congress, which is controlled by Republicans, wants to change federal law, which includes Title IX, to strip rights from transgender Americans, they can introduce legislation to do so and then hold votes on it.
Absent that action, it is up to federal courts to determine whether Trump’s order comports with federal law and the U.S. Constitution and can therefore be enforced. Absent such a ruling, Maine is wise to reject the Trump administration’s proposals and to continue to protect the rights of transgender athletes.
And, remember, it appears that we are talking about two transgender girls who have recently competed in high school sports in Maine. A flurry of federal funding freezes and cuts and threats to do more harm to Maine are over two people, two people who have the same civil rights protections as other Americans.
It is shameful that some Republican lawmakers in Maine are welcoming punitive cuts from the Trump administration that will harm Maine people. No matter your political beliefs, diminishing programs that help seniors, veterans, fishermen, farmers and others in Maine is not a political win. Trading the rights of Maine citizens, even just two of them, to satisfy the demands of the Trump administration is not a win.
It is also not a choice that Maine should be forced to make.
