Earlier this week, the United States Department of Justice filed a lawsuit against the Maine Department of Education, challenging its policies that allow biological males to compete in girls’ sports. The case, United States v. Maine Department of Education, alleges that Maine’s policies violate Title IX by denying girls a level playing field in athletics, a protection the statute was designed to ensure.
Despite the seriousness of the claims, Governor Janet Mills and Attorney General Aaron Frey have dismissed the lawsuit as political theater, accusing the Trump administration of overreach. Their statements, however, reveal a fundamental misunderstanding of both Title IX and the executive branch’s constitutional role in interpreting and enforcing the law. This is especially concerning, given that AG Frey is Maine’s primary legal agent, and Gov. Janet Mills has previously held that same position.
The Lawsuit: Enforcing Title IX’s Promise
The lawsuit filed by U.S. Attorney General Pam Bondi alleges that Maine’s policies flout federal civil rights protections by ignoring the undeniable physiological differences between males and females—differences Title IX was designed to recognize and accommodate through sex-separated sports. The complaint points out that by allowing boys who identify as girls to compete in girls’ sports, Maine deprives biological girls of fair competition, scholarship opportunities, and critical visibility.
Title IX’s implementing regulations explicitly permit separate teams “where selection for such teams is based upon competitive skill or the activity involved is a contact sport” (34 C.F.R. § 106.41(b)). The Trump administration argues that Maine’s policies violate these longstanding rules by effectively erasing the very protections Title IX mandates for female athletes.
Mills and Frey Respond: Misreading the Constitution and the Law
Governor Mills declared the lawsuit was not really about athletics, but about whether a President can “force compliance with his will.” AGFrey went further, stating, “anyone with the most basic understanding of American civics understands the president does not create law nor interpret law.”
These statements are ironic—and legally incorrect. While AG Frey may remember his fourth-grade teacher telling him about the executive, legislative, and judicial branches, the power of “judge-ing” the law is not the authority of only one branch; in fact, his previous statements contradict his current position. The executive branch does have some authority to interpret the law, for several reasons ranging from necessity to constitutional mandate.
First, interpreting and enforcing the law are among the executive branch’s fundamental duties. As the Supreme Court held in Bowsher v. Synar (1986), “Interpreting a law enacted by Congress to implement the legislative mandate is the very essence of ‘executive’ duty.” If the executive branch could not interpret statutes, it would be unable to carry out the basic job of enforcing the laws Congress passes, because they almost always have some vagueness to them.
Moreover, the argument advanced by Mills and Frey is starkly hypocritical. Both were strong defenders of the now-overturned Chevron doctrine, under which courts were required to defer to federal agencies’ interpretations of ambiguous statutes. Mills decried the Supreme Court’s recent decision overturning Chevron, complaining that it allows courts to “meddle in, if not outright impose their own agendas on, all kinds of public policies.” Yet now, when it suits them politically, Maine officials claim the executive branch cannot interpret the law at all.
Additionally, AG Frey joined an amicus brief defending executive agency discretion in the Chevron repeal case, arguing that the executive branch should have broad authority to make reasoned decisions within each agency’s delegated boundaries. AG Frey has acknowledged before that the executive branch has some authority to interpret the law, and is likely making this argument entirely because he doesn’t like the person doing the interpretation.
What’s even more concerning is that the executive’s right to interpret the law is a time-tested and crucial authority of the executive branch. In the 1857 Supreme Court ruling in the Dred Scott case, the Court ruled that Black Americans did not have the same constitutional rights as others. Soon-to-be-President Lincoln responded that “The Congress, the executive and the court, must each for itself be guided by its own opinion of the Constitution. Each public officer, who takes an oath to support the Constitution, swears that he will support it as he understands it.”
Lincoln’s position was that the president had the right to interpret the Constitution, which supported his pro-civil rights stance, in opposition to the Court. If Frey’s interpretation of executive independence had been applied back then, it would likely have forced Abraham Lincoln to support racial discrimination and even slavery. In general, if told to pick between Lincoln and Frey, the moral and authoritative choice is obvious.
Title IX Protects Participation and Competition
Another popular talking point has been that Title IX only protects the right to participate in sports, not the right to fair competition. Portland Press Herald Opinion columnist Douglas Rooks recently made this claim in an opinion piece.
But this is also factually incorrect, though less egregiously so than the statement of Maine’s attorney general. Title IX regulations require that schools provide equal athletic opportunities for both sexes, including whether the “selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes.” (See 34 C.F.R. § 106.41(c)).
Courts interpreting Title IX, such as the Ninth Circuit in Ollier v. Sweetwater Union High School District state that “Among the factors we consider to determine whether equal opportunities are available to male and female athletes is “[w]hether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes.””
Furthermore, in Biediger v. Quinnipiac University, the court specifically ruled that women who were included in the University track and field program but could not compete in events were not provided “genuine athletic participation opportunities.” In both cases, the ability of team members not only to participate but also to compete was considered a crucial part of equal opportunity law.
When a biological male takes a podium spot from a girl, or wins a track meet that would have qualified a girl for a scholarship opportunity, that is not just a loss of some abstract right to “competition”—it is a material deprivation of opportunity and benefit that Title IX was designed to prevent. While this mistake was not made by one of Maine’s leaders, the fact that it was published by one of Maine’s major media organizations highlights the importance of “fact-checking” the claim.
Conclusion
Maine leaders like Mills and Frey portray themselves as defenders of the rule of law. Yet their statements reveal a selective and inconsistent approach to legal principles—defending executive interpretation when it suits their policy goals and decrying it when it does not.
At its core, the Trump administration’s lawsuit is about enforcing the fundamental promise of Title IX: ensuring that girls are given the same opportunities as boys to excel, compete, and thrive. Maine officials’ dismissive reactions only underscore how far they have strayed from that basic principle. When the dust settles, the courts, not press conferences, will determine whether Maine can continue denying girls the level playing field that Title IX demands.