Updated: This story has been updated to add comment from the U.S. Department of Health and Human Services, and that the agency has amended its investigation.
A federal agency’s finding that Maine’s department of education violated Title IX for allowing student-athletes to play on teams consistent with their gender identity is the clearest showing yet of just how far the Trump administration will go to follow through on the president’s many threats to pull federal funding from states, schools, colleges and athletic associations that defy his executive orders.
And the agency’s finding of a violation—of which legal experts are dubious—possibly tees up a legal battle that could determine how much authority the president has to withhold public schools’ federal funds, and whom the landmark law prohibiting sex-discrimination protects.
The U.S. Department of Health and Human Services’ office for civil rights said in a Feb. 25 notice of violation that Maine’s education department failed to comply with Title IX, the federal law outlawing sex discrimination at federally funded schools, by permitting transgender athletes to play on girls’ teams. It referred the case to the U.S. Department of Justice.
HHS’ finding came just four days after the agency opened the investigation, and Maine officials confirmed that HHS contacted no one at the state’s education department or governor’s office before issuing its finding. The Bangor Daily News first reported the finding of a violation.
The agency’s probe was one of three the Trump administration launched against Maine after the president twice singled out the state during February events with the nation’s governors in Washington for violating his Feb. 5 executive order that threatens to withhold funds from schools that allow transgender girls to compete on girls’ teams.
During a Feb. 21 White House luncheon, Trump called Maine Gov. Janet Mills out directly, telling her she’d better comply “because you’re not gonna get any federal funding at all if you don’t.”
“See you in court,” Mills told the president, according to news reports.
That same day, HHS and the U.S. Department of Education launched probes of Maine’s education department. The next day, the U.S. Department of Agriculture opened an investigation into the state’s university system. An Education Department spokesperson said the agency’s Maine investigation is ongoing. USDA and the U.S. Department of Justice didn’t immediately comment.
HHS amended the scope of its investigation on Wednesday, March 5, adding the state’s principals’ association, which organizes high school athletic activities, and a high school. The investigation is ongoing, given the added entities.
“Maine must comply with Title IX or risk losing federal funding,” a spokesperson said.
Maine’s anti-discrimination law prohibits discrimination based on gender identity, and Maine is one of 23 states that don’t bar transgender girls from girls’ sports, according to the Movement Advancement Project. Athletic associations in Minnesota and California as well as a Washington state school district are also subjects of Education Department probes for their athletic participation policies.
An early test case for Trump’s authority and the reach of Title IX
The situation in Maine, with the three different probes and a quick finding of violation, is the earliest that could test the mettle of Trump’s executive authority over schools, after a flurry of executive orders that threaten funding for noncompliance.
Interpretations of Title IX have ping-ponged between administrations, with the last two Democratic presidents seeking to expand its protections to cover transgender students, and Trump seeking to roll those protections back. The Trump administration argues a school or state violates the anti-discrimination law when it allows a transgender girl to compete on a girls’ teams.
The Trump administration’s interpretation is “extreme,” said Deborah Brake, a professor of law at the University of Pittsburgh.
“There’s nothing to hang your hat on in the text of the statute to support the position that Title IX requires excluding transgender girls from girls’ sports,” Brake said. “A president cannot change the meaning of the statute through an executive order. An executive order should get no weight in terms of statutory interpretation in a court.”
Peter Lake, a professor of law at Stetson University, anticipates the matter will wind up in court.
“It’s been a point of debate between multiple administrations—particularly now, as the issue is kind of drilled down to something really specific: Is it discriminatory to allow a transgender athlete to participate in a female sporting event?” Lake said. “I think, in some ways, everybody’s sort of teasing the court system to say, give us an answer. … And Maine is now caught in the middle of that debate.”
Use of Title IX against trans athletes is still an open question in courts
It’s rare for HHS to launch a discrimination investigation, said Lake, who thinks Maine could contest the standards and protocol the department used to complete its investigation. Title IX investigations by the U.S. Department of Education’s office for civil rights are much more common.
A spokesperson for Mills, a Democrat, said neither the governor’s office nor the state’s education department were contacted during the HHS investigation, pointing to a Feb. 21 statement from Mills in which she considered the announced investigations to be “all but predetermined.”
A spokesperson for the attorney general’s office did not respond to a question asking whether the state was planning litigation after HHS’ referral to the Department of Justice.
The HHS notice to the state cited two news articles about transgender girls winning athletic events for Maine high schools to justify its findings.
I think, in some ways, everybody's sort of teasing the court system to say, give us an answer. … And Maine is now caught in the middle of that debate.
But beyond process, Trump’s interpretation of Title IX isn’t grounded in the statute or court decisions, Brake said.
The statute doesn’t require separate teams for girls; separate teams are permitted under Title IX regulations if selection is based on athletes’ skill level or for contact sports. But states and schools have a lot of discretion, Brake said.
“To take the position that Title IX requires the exclusion of a transgender girl from a girls team is not supported by the text of the statute, the regulations, and no court has said that,” Brake said.
It’s still an “open issue” as to whether Title IX protects transgender athletes. Some courts have said yes, and there have been strong arguments that Title IX requires including trans girls in girls’ sports, she said.
Former President Joe Biden sought to expand protections for transgender students under Title IX, but faced strong political headwinds. His update to Title IX regulations faced litigation in Republican-led states across the country, and a judge ultimately struck it down. The administration pulled back on a separate effort specifically addressing trans athletes’ participation in school sports as Biden’s term wound down, to keep Trump from short-cutting the regulations process and using it to quickly implement an outright ban on trans athletes’ participation.
But Trump is going beyond expanding or limiting protections.
“They’re not just arguing that Title IX doesn’t require including a transgender girl on the girls team. They’re arguing that Title IX prohibits it. They’re arguing that Title IX requires the opposite, that Title IX requires excluding,” Brake said. “No court has ever said that.”
Following HHS’ findings and referral, the U.S. Department of Justice is supposed to investigate and negotiate compliance with Maine’s education department. Typically, federal departments don’t immediately seek termination of funds to push compliance, experts have said. It’s rare for them to entirely terminate funding.
In a letter sent the same day HHS made its referral, U.S. Attorney General Pam Bondi implored Maine to be on notice, warning that the “Department of Justice stands ready to take all appropriate action to enforce federal law.”
“I hope that it does not come to this,” Bondi said in the letter. “The Department of Justice does not want to have to sue states or state entities, or to seek termination of their federal funds.”
If the Justice Department doesn’t get the compliance it’s looking for, it has the authority to bring a lawsuit to terminate funds, Brake said.
“That’s where a court will have the opportunity to decide whether allowing a transgender athlete on a girls’ team violates Title IX,” Brake said.
Trump’s executive orders to pull federal funding are an escalation from his first term
At the end of Trump’s first term, he fired off social media posts threatening to pull funds from public schools that used the New York Times’ Pulitzer Prize-winning 1619 Project to teach about slavery or opted for remote and hybrid school openings during the height of the COVID-19 pandemic. But unlike now, government agencies never took action to follow up on those threats.
“The edict went out to the agencies to do this,” Lake said, who noted a 2021 instance in which NASA threatened to pull dollars from Louisiana State University over Title IX. Unlike this time, however, NASA left the investigation to the Education Department, which has a robust investigation arm.
“That is an interesting shift,” Lake added.
