AUGUSTA, Maine — President Donald Trump’s fight with Maine is based on a simple legal argument: that allowing transgender students to participate in girls’ athletics erodes an anti-discrimination law intended to protect female spaces in schools.
That interpretation of Title IX, the 1972 law barring discrimination “on the basis of sex” in education, is at the heart of the federal funding threat that the Republican president issued last week. Trump’s words quickly turned into action as his administration announced investigations of the state, university system and the Maine high school attended by a transgender student who won a girls indoor track title last week.
Trump’s theory is untested. Courts have ruled that Title IX extends to gender identity, and a Supreme Court justice appointed by Trump authored a 2020 decision in the case Bostock v. Clayton County that could cut against the president’s interpretation. Barring a shift by the conservative court, two legal experts say Maine would win in court over the issue.
“If the Supreme Court wants to overturn Bostock, which I think it does, it can do that,” Jennifer Drobac, a retired professor at the Indiana University Indianapolis law school who specializes in Title IX. “But Bostock is still good law, so I think the legal issue is settled.”
This is not a new area of the law. Maine’s anti-discrimination law has had gender identity protections since 2005. Gov. Janet Mills and the Democratic-led Legislature added educational shields to the Maine Human Rights Act four years ago, which led the association governing scholastic sports to automatically allow athletes to compete under their identified gender.
Maine is one of 23 states that allow that kind of open participation, according to the Movement Advancement Project. The Trump administration is also investigating California and Minnesota along similar lines. Maine joined them last week after a social media post by Rep. Laurel Libby, R-Auburn, about the athlete went viral in conservative media and drew Trump’s eye.
Earlier this month, the president issued an executive order titled “Keeping Men Out of Women’s Sports” that lays out a theory that transgender participation violates Title IX. It cites a January decision by a federal judge in Kentucky to throw out former President Joe Biden’s bid to add gender identity protections.
That judge said transgender students were not protected by the Supreme Court’s ruling in Bostock, authored by Justice Neil Gorsuch, which settled an employment case governed by a similar area of law by saying discrimination based on sexual orientation and gender identity was inherently based on sex.
But the Bostock ruling was cited in an earlier federal ruling on Title IX finding it was unconstitutional to bar students from using bathrooms consistent with their gender identity. The reach of that decision is likely to be tested in court under Trump, including in a case brought last year by two transgender students challenging New Hampshire’s recently enacted law.
Republicans in Maine have often pointed to Trump’s order and interpretation, with Rep. Liz Caruso, R-Caratunk, saying Wednesday that her bill aiming to bar transgender girls from female sports sanctioned by public schools and colleges would bring Maine into compliance.
“Maine’s current policies have created chaos and discrimination, and the reality is that girls’ sports will no longer be sustainable without this critical legislation,” she said at a news conference.
Mills and Attorney General Aaron Frey, both Democrats, have vowed to defend the state’s laws, which will be debated more during this legislative session. Lawyers pointed to the longstanding Maine Human Rights Act that bars discrimination based on gender identity.
If the federal government attempts to punish Maine and other states for violating Title IX, then courts will have to decide whether Trump’s executive order and interpretation are legal and override state laws on the subject, Naomi Shatz, a Title IX lawyer at the Boston firm of Zalkind, Duncan and Bernstein, said.
“I think the answer has to be no, the president cannot dictate that states violate their laws,” she said.