The Trump administration argues that trans girls’ participation in athletics that align with their gender identity stifles the rights of female athletes and violates Title IX of the Education Amendments of 1972 (Photo by Nicky Lloyd/ Getty Images)
The unprecedented and rapid investigation by a federal agency into Maine’s policy allowing transgender girls to participate in high school athletics found the state Department of Education in violation of Title IX.
While it bolsters arguments that President Donald Trump is targeting the state for its trans-inclusive policies, an expert on Title IX said it may mean that Gov. Janet Mills could make good on her pledge to see Trump “in court,” and let the judicial branch determine whether such policies violate federal law.
The investigation by the U.S. Department of Health and Human Services’ Office for Civil Rights was announced on Feb. 21 and concluded four days later. It included no interviews, data requests or negotiations but the agency notified the Maine Attorney General’s office via emailed letter that the state had violated Title IX, the federal law banning sex-based discrimination in schools and colleges. The letter also handed the case over to the U.S. Department of Justice — a rare outcome for an OCR case.
The HHS investigation is among several launched against the state after Mills and Trump got into a heated exchange at the White House over the state’s policy. The U.S. departments of education and agriculture also have probes pending.
If Maine does not sue or comply, the department could withhold funds from Maine as soon as 10 days after the notice, which was sent on Feb. 25. While the letter does not go into detail about the exact amount of funding that could be withheld, Maine received more than $700,000 from HHS in 2024.
Trump administration launches investigation into Maine schools over transgender policy
The Maine Attorney General’s Office, Maine Department of Education and Mills’ office all refused to comment on the finding, but Mills’ spokesperson Ben Goodman pointed to a previous statement in which she predicted “that the outcome of this politically directed investigation is all but predetermined.’”
In the letter addressed to offices of the Attorney General and governor, Anthony Archeval, acting director for DHHS’ Office for Civil Rights, said trans girls’ (who he referred to as “male athletes”) participation in athletics that align with their gender identity stifles the rights of female athletes and hence violates Title IX of the Education Amendments of 1972, the federal law banning sex-based discrimination in agencies that receive federal money.
“MDOE 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,” Archeval wrote.
“Male athletes, by comparison, are not subject to heightened safety or competitive concerns, which only affect females. This lack of equal opportunity and fair competition constitutes a Title IX violation.”
The process followed by OCR — or lack thereof — defies decades of precedent, according to Jackie Wernz, a former OCR lawyer for the U.S. Department of Education who now represents schools nationwide in such cases. Within any federal agency, the Office for Civil Rights typically conducts lengthy investigations with fact-finding, interviews and legal analysis of how exactly the agency under investigation violated federal laws the office is tasked with upholding, including Title IX.
But in this case, OCR simply appears to be enforcing the Trump administration’s stance on trans athletes, according to Wernz.
This decision, Wernz said, should be alarming to schools nationwide, since typical OCR investigations don’t assume a position before they’re concluded.
What’s more, the finding by HHS indicates that other federal agencies may follow suit and find Maine guilty of Title IX violations, leading to the possibility that the state could lose federal funding from several agencies.
On Feb. 26, one day after the HHS letter was sent to Maine’s attorney general, a representative for the U.S. DOE’s civil rights office issued a statement criticizing Mills and her administration for not complying with Title IX while acknowledging that his agency’s investigation is still underway.
“It is shameful that Governor Mills refuses to stand with women and girls. Her rejection of the antidiscrimination obligations that Maine voluntarily accepted when it agreed to receive federal taxpayer dollars is unlawful,” said DOE Acting Assistant Secretary for Civil Rights Craig Trainor. “To Maine education leaders who stand up for girls and will comply with Title IX in their school districts and campuses: The Trump Administration—and the American people—support you fully.”
What the letter says
The letter states that by allowing trans girls to play on girls’ teams, Maine DOE and the Maine Principals Association, which governs high school athletics, are giving them preferential treatment and thus not providing girls the equal right to participate.
“The provision of additional opportunity for individuals who assert a ‘gender identity’ different from their sex, constitutes discrimination on the basis of gender identity, against students who identify as their sex,” it states.
“Based on the MPA’s policy of allowing male athletes to compete against female athletes, OCR has determined that MDOE is in violation of federal law under Title IX.”
Why was this investigation so quick?
There was no dispute over the facts of the case, since Maine has openly said trans girls are allowed to participate in female athletics. That is one factor that may have contributed to the swiftness of the result, Wernz said.
But more importantly, the predetermined interpretation of Title IX would’ve also led to the unusually fast decision, Wernz said. In her experience working with U.S. DOE’s civil rights division, a significant portion of the investigation would focus on determining whether the policies or actions in question actually violate the law. Title IX does not explicitly say anything about trans inclusion, but “to this administration, they’re not struggling with the question. They believe this violates Title IX,” Wernz said.
We have to recognize that this administration very clearly does not feel bound to the traditional methods of enforcement that the federal government has used in the past to enforce civil rights.
– Jackie Wernz, a former Office for Civil Rights lawyer for the U.S. Department of Education
“We have to recognize that this administration very clearly does not feel bound to the traditional methods of enforcement that the federal government has used in the past to enforce civil rights,” she said.
That should be “alarming to educational institutions,” she said, since that interpretation and speed could mean OCR and other agencies will launch similar probes against districts supportive of trans policies.
“If they don’t have to do an investigation, if they’re just going to come in from step one saying, ‘You are responsible for a violation of the law,’ they are going to be able to just crank out findings against schools and colleges and universities across the country with almost no restraint and no limits,” she said.
What could happen if this goes to trial?
While there is little legal precedent for this kind of OCR investigation, a case from 2018 by the former Trump administration against Chicago Public Schools did go to court, and was eventually settled, resulting in the district coming close to but eventually not losing federal funding, Wernz said.
The First Circuit courts will eventually determine whether Maine’s policy violates Title IX if there’s a legal challenge. In that case, Wernz said it’s possible the court could rule in favor of the state.
In previous cases, the First Circuit has generally supported the right of districts to determine policies, and has upheld inclusionary policies for trans and nonbinary students in Massachusetts schools.
A legal challenge seems to be inevitable if Maine wants to keep upholding the Maine Human Rights Act, which protects trans students’ rights. In a statement in response to the HHS verdict, Republican legislators called on Mills to “abandon this indefensible position and uphold Title IX protections for our girls.”
“I think Maine has two options,” Wernz said. “You either agree to stop allowing transgender athletes to compete, or you go to court.”
“There will still be an opportunity for the state … to mount a defense,” she added, noting however that the rushed verdict “has cut out a very important part of that process, that I think contributed to a sense of fairness within the process.”
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