Enacted in 1972, Title IX prohibits sex discrimination in schools that receive federal funding. In a notice sent Feb. 25, the acting director of the HHS Office for Civil Rights said the Maine Department of Education “violates Title IX by … allowing male athletes to compete against female athletes in current and future athletic events.”
“Male athletes, by comparison, are not subject to heightened safety or competitive concerns, which only affect females,” continued the notice, signed by OCR acting director Anthony F. Archeval and sent to the offices of Mills and Maine’s attorney general. “This lack of equal opportunity and fair competition constitutes a Title IX violation.”
A spokesperson for Maine Attorney General Aaron M. Frey (D) told The Washington Post on Thursday that his office would have no further comment. The spokesperson, Danna Hayes, previously told the Bangor Daily News that state officials were not contacted by the OCR during its investigation.
While transgender athletes make up a minuscule percentage of participants in college sports, according to recent testimony from the head of the NCAA, Trump and the Republican Party repeatedly made it an issue during his presidential campaign last year. When he took office Jan. 20, one of his first acts was to issue an executive order stating his administration would “defend women’s rights and protect freedom of conscience by using clear and accurate language and policies that recognize women are biologically female, and men are biologically male.”
The executive order went on to state that the term “gender identity” reflects “a fully internal and subjective sense of self, disconnected from biological reality and sex and existing on an infinite continuum, that does not provide a meaningful basis for identification and cannot be recognized as a replacement for sex.”
Maine’s Human Rights Act states that “gender identity” means “the gender-related identity, appearance, mannerisms or other gender-related characteristics of an individual, regardless of the individual’s assigned sex at birth.”
The exchange between Trump and Mills, which occurred at a White House meeting of state governors Feb. 21, unfolded two days after a Maine legislator appeared on Fox News and called for federal defunding of schools in her state in the wake of a transgender athlete’s victory at a state high school pole vault championship.
At the White House meeting, Trump called out for Mills and asked if she was “not going to comply” with his executive order. The Maine governor replied that she would “comply with state and federal laws,” to which Trump said, “We are the federal law.” He followed by threatening to withhold federal funding from her state.
“We’re going to follow the law, sir. We’ll see you in court,” Mills said.
Later that day, the civil rights office for the U.S. Education Department, as well as its HHS counterpart, announced an investigation into Maine’s educational agency. The U.S. Agriculture Department said the next day that it was initiating a compliance review of the University of Maine following what it described as that state’s “blatant disregard” for Trump’s executive order.
In its subsequent notice to Maine authorities, the HHS OCR cited the pole vaulter, as well as a story published by Outkick that focused on a Maine transgender athlete who reached the podium last month in high school Nordic skiing competitions.
“Even by the own logic of the Maine Principals’ Association, moreover,” the notice said, “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.”
