Experts decried the lack of legal process and rationale behind the Trump administration’s finding late last month that Maine is violating a federal civil rights law by allowing transgender girls to play on girls’ sports teams, saying the state is being set up for a lawsuit that could have national ramifications.
The U.S. Department of Health and Human Services’ Office for Civil Rights sent a letter to Maine on Feb. 25 — four days after opening an investigation — stating that it was violating the anti-sex discrimination law Title IX by allowing two transgender girls to participate in girls’ high school sports. The Bangor Daily News reported the finding Wednesday.
Contrary to standard procedure, neither the attorney general’s office, the governor’s office, the Maine Department of Education, nor the Greely school district, whose transgender track athlete has been put under a national spotlight, were questioned by federal investigators before they asserted there was a violation of Title IX. The federal government’s determination letter instead cited news reports.
The Maine Department of Education “violates Title IX by denying female student athletes in the State of Maine an equal opportunity to participate in, and obtain the benefits of participation, ‘in any interscholastic, intercollegiate, club or intramural athletics’ offered by the state by allowing male athletes to compete against female athletes in current and future athletic events,” the U.S. DHHS wrote.
But law professors and lawyers said the federal government’s interpretation of the landmark civil rights law runs counter to their understanding of Title IX, which they said does not require a blanket ban on transgender athletes in girls’ sports. And they took issue with how the federal government reached its finding, blasting it for a superficial investigation.
“It is such a strange interpretation of Title IX to say that female athletes have been denied the benefits of participation just because of the presence of a transgender girl on a team. They cite two instances in the entire state of Maine where apparently there’s been a transgender girl on a girls’ team. How does that deny anyone, any girl, the benefit of an education program or activity under Title IX? It does not,” said Deborah Brake, a professor of law at the University of Pittsburgh School of Law.
It remains an open question whether the federal law requires schools to allow transgender girls to participate on girls’ teams, she said, but it does not require keeping them out.
“The interpretation that they are taking of Title IX is not supported by the text of the statute, any regulation that’s gone through the appropriate regulatory process or even any official agency interpretation interpreting Title IX,” Brake said.
The only legal document that says transgender girls can’t participate is President Donald Trump’s Feb. 5 executive order, “Keeping men out of women’s sports.” If they do play on a team that aligns with their gender identity, the federal government will rescind “all funds” from those educational programs, the executive order states.
But the executive order does not have the force of law, and it cannot change the meaning of Title IX, Blake said. While some people worry that transgender girls on sports teams will make it harder for girls to win, Title IX doesn’t exist to give girls the best chance at winning, she said.
“The issue here is whether there is a conflict with Title IX and what Maine is doing. I don’t think there is. The president thinks there is, and he said so in an executive order, but that is not binding statutory law,” she said.
There has never been a court decision interpreting Title IX to require the exclusion of transgender athletes from girls’ sports, Blake said. Title IX does not even require separate sports teams for girls and boys, she added, though it permits it and gives local school districts flexibility in how they run their programs. In fact, boys have been allowed to participate on girls’ teams in places where there aren’t boys’ teams for sports such as volleyball or field hockey, she said.
Given that U.S. DHHS says it referred Maine’s alleged violation to the U.S. Department of Justice, the next step will be for that federal agency to do its own investigation and try to negotiate voluntary compliance with Maine, Blake said. If it can’t, the department can file a lawsuit in federal court against Maine to withdraw federal funding.
“When they file a lawsuit against the state of Maine to try to terminate federal funding, that’s when these arguments will come out, and a court will have to decide: Does Title IX require girls’ teams to exclude transgender girls?” Blake said.
Maine Gov. Janet Mills, a Democrat, has anticipated that outcome. At a White House event with state governors in February, Trump threatened to pull Maine’s federal funding unless Maine changed its policies, prompting Mills to reply: “We’re going to follow the law, sir. We’ll see you in court.”
Maine law considers gender identity a protected status, meaning schools cannot discriminate against their few transgender students. Between 2013 and 2021, only four transgender girls asked the Maine Principals’ Association, which runs high school sports, if they could participate on athletic teams consistent with their gender identity.
A Department of Justice lawsuit against the state of Maine would have national implications, said Ellen Staurowsky, a professor of sports media at Ithaca College in New York.
Even so, it’s not typically an easy process to withhold federal funding under Title IX, said Tara Walker, a partner with Fisher and Phillips law firm in Portland. In fact, the federal government has never suspended or cut federal funding for a Title IX violation.
For its Title IX investigation into Maine, the Trump administration did not interview witnesses, relied on a false legal interpretation of the federal law, and came to a conclusion in four days when investigations normally take months or years, civil rights lawyer David Webbert said. It indicates to him that the administration isn’t interested in following legal procedures, he said, which could weaken the federal government’s court case.
“They just want to do what they want to do. It’s raw power, and it’s totally inconsistent with a legal process that honors the law, which should hurt them in court,” said Webbert, managing partner of the Maine law firm Johnson and Webbert. “That’s arbitrary and capricious to not even hear the other side of the story.”
Trump could cut Maine’s federal education funds if the state were truly in violation of Title IX, Webbert said, but Maine “is clearly not” violating Title IX.
“Governor Mills was right when she said, ‘We follow federal law.’ Federal law doesn’t mean what the president says it is. She’s right, and he’s wrong, 100 percent. A first-year law student would know that,” Webbert said. “He’s got the law totally wrong, and that’s a scary thing when it’s the president of the United States.”
Erin Rhoda is the editor of Maine Focus at the Bangor Daily News. She may be reached at [email protected].
