Students walk on campus at the University of Maine Orono. (UMaine photo)
The U.S. Education Department can’t enforce its updated Title IX rules that bolster protections for LGBTQ+ students at Maine’s public universities, Bowdoin College, and a handful of schools.
But Maine’s robust protections at the state level and universities’ expansive nondiscrimination policies have resulted in several layers of protections for gay, transgender and gender nonconforming students amid the national attacks on their rights.
The University of Maine System and Bowdoin College — along with three K-12 high schools — were named among hundreds of others nationwide in a federal lawsuit challenging updates to Title IX. As a result of a Kansas court ruling last month, upheld by the U.S. Supreme Court on Friday, the updated rules that went into effect this August don’t apply to schools and universities on that list.
The final update to Title IX — the 1972 law that bans sex discrimination in federally funded educational institutions — strengthens protections from discrimination for LGBTQ+ students, pregnant students and victims of campus sexual assault.
It has been controversial since it was proposed. Some LGBTQ+ advocates criticized the rule for not including protections for transgender athletes, which the Biden administration originally planned to include, but eventually put on hold. Meanwhile, the education department also faced criticism from Republican lawmakers for including protections from discrimination based on gender identity and sexual orientation, resulting in the final rule being blocked in 26 states before it could be implemented.
Ruling blocks new Title IX rule in some Maine schools, but state anti-discrimination law remains
The Kansas lawsuit was filed by conservative groups such as Young America’s Foundation, Female Athletes United and Moms for Liberty, who sought to block the enforcement of the final rule in any school or college which is attended by a member, or member’s family.
The University of Maine System and Bowdoin College will both follow the 2020 version of Title IX while their names remain on the injunction list, according to written statements sent to the Maine Morning Star. Both institutions will also safeguard the freedoms of LGBTQ+ students and other protected groups with their own policies and under state law while the education department remains unable to enforce the updated rules.
In the meantime, whether claims of discrimination on the basis of gender identity and sexual orientation can be filed and addressed under Title IX procedures, and how they can be adjudicated remain the predominant questions for Maine’s educational institutions, according to Jeffrey Nolan, a partner at the national law firm Holland and Knight.
“A school absolutely can prohibit discrimination and harassment on all of those bases, without any need to rely on federal law to do that,” he said. “The biggest issues are going to be procedural issues, not a question of who’s covered, who’s protected, or what types of discrimination are prohibited.”
The plaintiffs can also add more institutions to the list, if they gain members, according to the judge’s ruling.
Rights of LGBTQ+ students remain protected on Maine campuses
The Maine Human Rights Act also bans discrimination on the basis of sex and sexual orientation, which includes gender identity and expression. All educational institutions in the state are still required to operate under the law, and the Kansas ruling can’t be applied to state laws.
“We want all members of our university community to know that their rights will continue to be protected despite this injunction, which only changes the process by which any alleged violation of those rights is investigated,” said Samantha Warren, the spokesperson for the UMaine System, in an email.
“Even if the 2020 Title IX regulations did not include protections for certain students, our commitment to safeguarding all students will persist under our own existing policies and procedures and/or other relevant state and federal laws,” Warren said.
The university system’s equal opportunity policy is more expansive than state law; it explicitly prohibits discrimination based on sex, sexual orientation, transgender status, gender, gender identity or expression, and genetic information.
Should the injunction be overturned or modified, the system is ready to implement the new Title IX regulations, Warren said.
Bowdoin’s nondiscrimination policy similarly protects students from discrimination on the basis of sex, sexual orientation, gender identity and/or expression, and genetic predisposition.
“Bowdoin is aware of the various legal challenges to these regulations, none of which prevent the College’s ability to address complaints of sex discrimination, including sexual harassment, or providing support to all parties involved in a process whether under this policy or other applicable policies,” according to the Bowdoin Title IX policy.
The college’s policy is currently under review, spokesperson Doug Cook said in an email. Meanwhile, Bowdoin is following the policy that was written in 2020 “that protected all students then and does so now,” he said.
Loss of procedural freedom while the final Title IX rule remains blocked
In states with strong protections against discrimination, such as Maine, the biggest difference between the 2020 Title IX rule and the 2024 update is the way Title IX hearings are conducted, according to Nolan.
“For schools at a place like Maine … those will just have to wrestle with this procedural piece of whether they feel they want to follow the 2020 regulations,” he said.
While it makes sense that most universities mentioned in the injunction are following the 2020 version of the Title IX policy because that’s what the department can hold them accountable for, there is technically nothing stopping them from adopting the 2024 policy, Nolan said.
In that case, they have a choice of which procedural rules to follow.
The 2020 rules required an in-person setting mimicking a courtroom for Title IX hearings, including cross-examination of witnesses. The new rules allow hearings to be virtual, or adjudication to happen in separate meetings.
There isn’t a clear answer to which adjudication method is better, Nolan said.
“I think all of the processes can work just fine if they’re done well,” he said.
“So many things go into determining what’s the right adjudication model for a school. And under the 2024 regulations, you get to choose.”
SUPPORT NEWS YOU TRUST.