A U.S. Supreme Court ruling upholding state bans on transgender school athletes does not appear to affect Maine’s policy of allowing students to compete based on their gender identity.
The court’s conservative majority ruled that bans in West Virginia and Idaho do not violate the U.S. Constitution or the federal anti-discrimination law known as Title IX. Twenty-seven states have laws barring biological males from participating in girls’ and women’s sports.
But the relatively narrow ruling does not require states to restrict transgender athletes participating in athletics and, instead, leaves that decision up to state and local officials. As a result, Maine’s policy will remain in place.
“I guess that’s the silver lining for those states like Maine that want to be inclusive and welcoming of all kids — that that can continue in Maine, which is really helpful,” said Gia Drew, executive director of EqualityMaine.
Drew is disappointed but not surprised by the ruling, given the court’s conservative majority. And she said the ruling was “heartbreaking” for transgender students and families in those 27 states where bans are in place.
“It shouldn’t have a major impact in Maine, but I think it is unsettling that the Supreme Court is OK with allowing states to discriminate against kids, young girls and young women who happen to be trans,” Drew said. “Telling them that you can go to school between 8 o’clock and 2 o’clock and you can be part of our school community, but after school when we have sports, you can’t be part of our community any more.”
Maine’s policy is based on the Maine Human Rights Act, which prohibits any discrimination because of gender identity. The U.S. Department of Justice under the Trump administration has sued Maine and several other states, alleging their policies discriminate against girls and women athletes under Title IX.
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Maine gained national attention over the issue last year following a high-profile exchange between President Donald Trump and Democratic Gov. Janet Mills. After Trump threatened to withhold federal funding unless Maine complied with his executive order banning trans athletes from girls sports, Mills replied, “See you in court.”
State Rep. Laurel Libby, the Auburn Republican whose social media posts about a transgender high school athlete went viral, described the Supreme Court’s decision as “a victory for common sense, for fairness, and for every girl who has worked hard to earn her place on the field, the court, or the podium.”
“This decision affirms the constitutional backing of an obvious truth: neither Title IX nor the Equal Protection Clause requires any state to allow biological males to compete in female categories,” Libby said in a post on Facebook. “Twenty-seven states have already acted to protect girls’ and women’s sports. Today’s ruling clears away any excuse for inaction and strengthens the case for protecting girls’ sports. It’s time for Maine, and other states like it, to follow the law, protect girls’ sports, and ensure every young woman has the opportunity to compete on a fair, safe, and level playing field.”
Jennifer Levi, senior director of transgender and queer rights at GLAD Law, described the ruling as “devastating” for transgender students in states with bans. But said it was hopeful to her that the court “didn’t take a wrecking ball” to other states’ policies.
“It’s a devastating decision, for sure, because of the fact that it upholds bans in states that have them,” Levi said. “But it also leaves in place inclusive policies where they exist, and that’s important.”
It was unclear Tuesday whether — and if so, how — the court’s ruling could impact the federal lawsuits against Maine and other states.
Maine Attorney General Aaron Frey indicated that the case will continue.
“Today’s ruling, while predictable, is yet another disturbing affront to personal liberties by providing states with a license to discriminate,” Frey said in a statement. “The court was clear that this decision had no bearing with respect to a state’s choice to include transgender athletes and as such, will not implicate the Department of Justice’s case against Maine. We will continue to defend Maine’s law.”
Justice Brett Kavanaugh, writing the majority opinion, acknowledged the complexity and evolving nature of the issue.
“Particularly in the sports context, determining the effects of the puberty blockers and hormones taken by transgender athletes — and then comparing each of those transgender athletes’ abilities to those of other individual biological males and individual biological females in the relevant sport — would be an almost impossible task for a judge to perform on an equitable basis,” he wrote. “The legislatures and the schools are better equipped — and under the Constitution, are the more appropriate entities — to assess the competing medical and scientific considerations and draw appropriate lines.”
Meanwhile, the political fight over the issue of transgender athletes continues in Maine.
On Wednesday, the Maine Supreme Judicial Court is slated to hold oral arguments on whether a proposed referendum to restrict trans athletes should appear on the November ballot.
The group Protect Girls’ Sports in Maine group launched the ballot initiative campaign after failing to convince lawmakers in the Democratic-controlled Legislature to change Maine’s policy. They submitted nearly 80,000 signatures earlier this year and were initially granted access to the ballot by Secretary of State Shenna Bellows.
But opponents challenged many of the signatures. And after reviewing the petition sheets and holding a hearing with parties from both sides, a state elections official recommended that more 12,500 of the nearly 80,000 signatures be invalidated because of multiple issues. Those included forged signatures, petition circulators failing to file valid affidavits with the secretary of state’s office, duplicate signatures and signatories not matching any registered voters in their town’s voting rolls.
Bellows agreed with that recommendation, as did a Superior Court judge. Attorneys for Protect Girls Sports in Maine will now make their argument to Maine’s highest court in hopes of securing a spot on the fall ballot.
This story appears through a media partnership with Maine Public.