Just six months ago, Maine would have seemed an unlikely battleground in the political, cultural and legal war over transgender athletes.
After all, only two transgender athletes are known to be competing in girls’ sports in Maine this year out of tens of thousands of high school athletes statewide.
Yet the state’s legal showdown with the White House over transgender athletes could affect schools and students nationwide, especially if the Trump administration’s lawsuit against Maine becomes the national test case.
“In my mind, I am inclined to think that the one between the Justice Department and the state of Maine is going to ultimately make it to the Supreme Court first,” said Sarah Parshall Perry, a former senior counsel to the assistant secretary for civil rights at the U.S. Department of Education during the first Trump administration. “It’s got nationwide importance, the United States is a party and it is cases structured and positioned in that way that are most likely to get the court’s attention.”
The outcome of two federal lawsuits involving Maine could also have broader implications as President Donald Trump uses executive orders and federal funding cuts to attempt to force states into compliance with his policy views.
“I think you have a wide range of assertions of executive authority having been made by President Trump – a sort of record-setting flurry of executive orders,” said Andrew Rudalevige, a professor of government at Bowdoin College who studies presidential powers. “And yeah, some of them are going well beyond what past presidents thought their authority consisted of.”
The Trump administration has targeted multiple states, universities and sports governing bodies in the months since the president issued an executive order banning transgender athletes from girls’ and women’s sports. But the Maine Department of Education has the distinction of being slapped with the administration’s first federal lawsuit over the issue last month.
“The state of Maine is discriminating against women by failing to protect women in women’s sports – pretty basic stuff,” U.S. Attorney General Pam Bondi said during a press conference announcing the lawsuit. “This is a violation of Title IX. The Department of Justice will not sit by when women are discriminated against in sports.”
37 words that say so much — and so little
Title IX, the nondiscrimination law that Bondi referenced, is just 37 words long. But what Title IX explicitly says or doesn’t say — and how it should be interpreted — has been the subject of decades of debate.
Enacted by Congress in 1972, Title IX sought to level the playing field between men and women in the classroom, during extracurricular activities and in athletics. The law applies to any federally funded institution, which means most schools in the U.S.
Title IX reads: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
But the language is broad, even vague. And the law has been tweaked by Congress, modified by the courts and reinterpreted by presidential administrations time and time again over the past 50 years.
Case in point: transgender rights over the past decade.
Transgender Americans were granted protections under Title IX during the Obama years, lost those protections in Trump’s first term, regained them under President Joe Biden ... and then lost them again within days of Trump returning to the Oval Office. Trump’s Feb. 5 executive order, “Keeping Men Out of Women’s Sports,” didn’t just reinterpret Title IX; it explicitly bans transgender athletes from all girls’ and women’s sports.
Some institutions, such as the NCAA, quickly fell into line. But Maine and other states with laws explicitly prohibiting discrimination based on “gender identity” have yet to comply.
“The president issued an executive order saying he had a certain interpretation of Title IX and demanding that that be adhered to,” Rudalevige said. “The executive order doesn’t change the law. It merely presents an interpretation of that law. So the courts are the appropriate place for that difference of opinion to be played out.”
Supreme Court bound?
The Justice Department’s civil lawsuit against the state is currently parked in federal district court in Maine, awaiting legal briefs from both sides. Ultimately, however, the issue of whether Title IX should apply to transgender individuals appears destined for the nation’s highest court.
“There has not been a definitive Supreme Court decision on the question,” said Erin Buzuvis, a professor who specializes in gender and discrimination law in education and athletics at the Western New England University School of Law in Massachusetts. “There is lower court case law about this. Many courts have ruled in favor of trans athletes. There are some that have not.”
Buzuvis said those cases dealt with transgender students and athletes in sex-segregated spaces, like bathrooms and locker rooms, rather than in athletic competitions. But Buzuvis and some other legal scholars see clear parallels between the looming Title IX fight and another case that did make it to the Supreme Court in 2020.
In that case, Bostock v. Clayton County, the court ruled 6-3 that the employment law known as Title VII prohibits discrimination based on gender identity. Buzuvis said that decision is helpful and applicable, but doesn’t guarantee a similar outcome in the Title IX case.
“That said, I think there are very strong arguments that the same underlying rationale ... (banning) discrimination in employment ought to apply in athletics as well,” Buzuvis said.
One of President Trump’s Supreme Court picks, Justice Neil Gorsuch, wrote the majority opinion in that employment law case. He was joined by fellow conservative and Chief Justice John Roberts. But since then, two of the left-leaning justices who voted with the majority were succeeded by two conservative justices.
“If you just count the votes based on Bostock, you might think that the votes are there,” said Rutgers University Law School professor Katie Eyer. “But I am not that sure that is going to actually turn out to be true.”
As an anti-discrimination law professor, Eyer wrote one of “textualist” legal papers that reportedly influenced Gorsuch’s prevailing opinion in the employment law case. She also agreed with Buzuvis that the same arguments that applied to that case should apply to Title IX because the language is so similar.
“So Title VII says ‘because of sex’ and Title IX says ‘on the basis of sex,’” Eyer said. “The Supreme Court has said on numerous occasions that those phrases mean exactly the same thing.”
Not surprisingly, conservative legal expert Sarah Parshall Perry has a much different take.
“The language of both statutes is different,” said Parshall Perry, the former legal counsel for civil rights under Trump and current vice president and senior fellow at Defending Education, a national group supporting bans on transgender athletes.
Parshall Perry said while the employment law expressly prohibits any sex-based discrimination in the workplace, Title IX is different because it requires schools to provide equal educational and athletic opportunities to all. She also said it was clear that both Congress and the women’s groups pushing for Title IX in the 1970s were focused on “biological sex.”
“And the fact that Congress's original purpose would be frustrated by expansion to include gender identity or transgender status, I think, argues very strongly for the fact that the President's administration has correctly interpreted this long standing federal civil rights law,” Parshall Perry said.
Entire nation ‘keen to watch what happens’
It’s unclear whether the lawsuit against Maine will be the one to land in front of the Supreme Court given the court’s broad discretion for choosing cases.
The Trump administration is threatening similar suits against universities and much bigger states with more transgender athletes than Maine. Female collegiate athletes who say they were disenfranchised or even injured by transgender competitors have also filed at least three federal cases against the NCAA, athletic leagues and specific schools.
While Buzuvis and Parshall Perry disagreed on the policy, they agreed that the court might take an interest in the Maine case given the constitutional questions around state sovereignty and the Department of Justice’s involvement.
“I think the entire nation is going to be very keen to watch what happens next,” Parshall Perry said. “I give Gov. Janet Mills a hat-tip because she was nothing if not bold in confronting the president to his face, telling him that she would see him in court. I just don't know if she thought that promise would come with a money back guarantee.”
Either way, Maine Attorney General Aaron Frey recently told NPR’s Here & Now program that his team has been gearing up for this fight for months, presumably ever since Mills retorted “See you in court” to Trump’s funding threats.
“As Gov. Mills said, we were prepared to defend ourselves in court on this because we are confident in our reading of Title IX and on the Maine Human Rights Act and what is required of our state,” Frey said.
Attorney General Bondi, meanwhile, had this to say about the state’s confidence.
“Well they must not be reading the same Title IX that we’re reading,” Bondi said.
Soon, the courts could decide whose Title IX interpretation was correct, and who was overconfident.
Maine's Political Pulse was written this week by State House correspondent Kevin Miller and produced by news editor Andrew Catalina. Read past editions or listen to the Political Pulse podcast at mainepublic.org/pulse.
