Gov. Janet Mills and President Donald Trump butted heads on February 21 over whether Maine would comply with the President’s new non-trans inclusive Title IX interpretation, with both sides exchanging threats. This conflict between political and legal authorities in Maine state government and the federal government has been building up over the last month with no end in sight. While Gov. Mills has stated, with much bravado, that she intends to see President Trump in court, many factors are stacking the deck in favor of the president. 

On January 20, over a month prior, President Trump issued an executive order stating that his interpretation of antidiscrimination law protects women from being forced to compete against biological men in federally-funded schools. This includes his application of Title IX, which requires any educational institution receiving federal funds to not engage in sex-based discrimination. The federal government forces compliance with federal antidiscrimination law in schools by threatening to remove federal funding if they do not comply. Trump has now invoked that authority, warning that he will defund Maine schools if our state doesn’t comply with his interpretation of federal law.

While Maine Policy Institute predicted that such a conflict between Maine and federal authorities would occur, it wasn’t until Trump pointed out Maine’s noncompliance that Gov. Mills issued a proper response. If they are foolish enough to bring this to court, Maine government will likely focus on a few specific legal arguments:

  1. First is the Maine Human Rights Act (MHRA), which includes a gender identity provision that the state interprets to protect the right of trans students to join the sex-based sports teams of their choice. 
  2. Second is previous presidents’ interpretations of Title IX.
  3. Lastly is Supreme Court precedence. In a 2020 case, Bostock v. Clayton County, the Supreme Court ruled that sex-based discrimination also protected against sexual orientation-based discrimination, and this has been interpreted by many to include gender identity. There have been some similar cases as well, but none yet directly apply to education.

This may make it seem like Gov. Mills has the upper hand; after all, she has three justifications while Trump has only one. However, looking deeper into the rationale behind each of her reasons and the overall background of this legal battle, one can see how much weaker her case is than it first appears.

Issue One: The Maine Human Rights Act

The Maine Human Rights Act may initially seem to support Gov. Mills stance, and while it technically does, it does not circumvent federal law. Essentially, her interpretation of the MHRA is that it prohibits discriminating against trans athletes. However, when we compare this to Title IX, we see significant problems.

While the MHRA is an across-the-board requirement, Title IX technically isn’t. A state school could choose to violate Title IX and discriminate based on sex, but they would lose all of their federal education funding. For Maine, this is around $360 million a year, and losing that much money would be pretty impactful. This means that the MHRA does not create some sort of waiver against complying with Title IX because Title IX does not technically even mandate universal compliance.

Issue Two: Conflicting Title IX Interpretations

It has been pointed out that Trump’s interpretation of Title IX may conflict with the understanding of the law by previous Presidents. While it might seem to undermine the strength of his interpretation, Congress always passes laws with some vagueness, delegating some interpretation to the executive branch. 

While Trump cannot pass his laws, he can issue statements of his interpretation of law and orders to his agencies to enforce laws a certain way. This is the essence of an executive order, and most Presidents issue hundreds of them. Furthermore, very often, executive orders will override or contradict previous executive orders, and presidents are not automatically beholden to the opinions or interpretations of their predecessors. A court might, later on, feel that Trump is overstepping and inappropriately exercising lawmaking power, but, at the same time, a president passing impactful and meaningful executive orders is immensely common.

Issue Three: Supreme Court Precedence

This may be the strongest argument in Maine’s case, as the courts have broadly interpreted Clayton County to apply to trans individuals’ right to nondiscrimination in education and employment. There are similar cases where trans-identifying people were also considered protected by federal discrimination law, specifically in employment in R.G. & G.R. Harris Funeral Homes Inc. v. E.E.O.C. 

These cases largely, however, have covered employment law, making some question their applicability to education. In addition, many of the arguments for Gov. Mills’ case become completely irrelevant when considering the last big issue with her plan to fight Trump.

Issue Four: The Power of the U.S. Congress

This issue stems directly from the core of the United States’ checks and balances system and, specifically, how its judicial branch works. While those who know the basics of checks and balances likely see how each branch can limit the others’ powers, the current situation is a bit more complicated than that. 

If a federal court, or even the Supreme Court, held that Trump was wrong, he might refuse to comply with court orders. He might even order the Department of Education to withhold funds despite court orders otherwise, and could even choose to pardon them to avoid any danger of prison. If he did this, the only recourse would be for Congress to impeach him. Still, since Congress is majority Republican and is already working on passing a bill doing the same thing as his executive order, they almost certainly wouldn’t impeach him.

Instead of the more basic 1-on-1 president versus federal court scenario, this is a 2-on-1: Congress and President Trump versus potential court system resistance. In checks and balances, when it is two-versus-one, the two always win.

We know this because it has happened before. In 1857, the Supreme Court decided the case Dred Scott v. Sandford and ruled that black Americans had no constitutional rights. However, in 1861, the Republicans controlled the White House and both houses of Congress and refused to respect the Dred Scott decision. Lincoln refused to enforce Dred Scott, and eventually, they would pass constitutional amendments, numbers 14 and 15, supporting his interpretation.

Because of the Republican Congress, this removes impeachment from the list of options and means that by the time the court case is heard, Pres. Trump’s actions may be supported not just by an executive order but also by a federal statute. At that point, the courts would throw out the case due to the mootness doctrine, which says that courts shouldn’t decide questions that don’t matter anymore. After all, Trump can’t break federal law if Congress has made his actions completely legal.

Conclusion

Gov. Mills was the former attorney general of Maine, and current Attorney General Aaron Frey and her are both licensed attorneys. They should know they are fighting a losing battle in this regard. 

If they understand that federal law “trumps” state law, a lesson we learned during the Civil War, it raises the question of how much state money they intend to waste on a fruitless lawsuit. Even more, if they understand the likely consequences of their actions, they are knowingly risking Maine losing around $360 million a year in federal education funding.

As much as Maine’s Governor may think she is doing the politically popular thing, I sincerely hope she realizes the dire situation in which she is putting our state’s schools. The good news is that when public schools start shutting down because of our governor, at least they’ll all qualify for school choice through town tuitioning.