Committee discussion on trans student rights highlights questionable interpretation of Title IX

Yahoo

21-05-2025

A transgender student who asked not to be identified stands outside the hearing room of the Judiciary Committee in the State House in Augusta. The committee held hearings on proposed bills to restrict transgender rights on May 8, 2025. (Photo by Jim Neuger/ Maine Morning Star)
Lawmakers who heard hours of public testimony on transgender rights in schools were divided on whether transgender girls should be allowed to compete on girls' sports teams. But they overwhelmingly rejected broader efforts to roll back rights for transgender students, including bills that would restrict pronoun use or remove gender identity as a protected class under Maine law.
The legislative debate unfolded amid national attention, fueled by President Donald Trump's administration claiming that Maine is violating Title IX — the federal law that prohibits sex-based discrimination in education — by allowing trans girls to compete in girls' sports. The discussion included how the proposed bills would impact the state's compliance with Title IX, with several legal experts explaining to committee members Tuesday that affirming trans students is not a violation of federal law, despite the administration's interpretation and threats.
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To what extent Title IX protects trans students' rights in schools per legal precedent is unclear, according to Mary Bonauto, acclaimed civil rights attorney and senior director of civil rights and legal strategies at GLAD Law.
'I think this raises the bigger issue, which is what constitutes sex discrimination, and is it sex discrimination to exclude a transgender student from a meaningful opportunity for girls and young women,' she said.
She pointed to the U.S. Supreme Court's 2020 decision in Bostock v. Clayton County, which found that discrimination based on sexual orientation or transgender status is inherently rooted in sex, and therefore violates Title VII of the Civil Rights Act, which is related to employment law.
'When you want to forbid somebody from participating in sports…because they're transgender, the first thing you're thinking about is their sex,' she said. 'You essentially, at that point, are penalizing somebody for a trait or action that would be acceptable if they were the other sex.'
Bonauto noted that while Bostock applied to employment law, its reasoning has significant implications for education law under Title IX.
Alternately, Erica O'Connell from the conservative Christian law firm Alliance Defending Freedom told the committee that Bostock decision can't be applied to Title IX directly, because girls have been historically discriminated against, and allowing trans athletes to participate in girls' sports takes away opportunities from cisgender girls.
'One boy taking a part on a team that belongs to a girl, is eroding that equal protection in education,' she said.
Judiciary Committee members were split on that issue, with a 6-6 vote on two bills restricting the rights of trans athletes — LD 233 and LD 1134. These bills would cut funding to school districts that allowed trans girls to participate on girls teams and use school facilities aligned with their gender identity, including bathrooms and locker rooms. Rep. Dani O'Hallaran (D-Brewer) broke from the Democrats on those bills, although she voted against all other anti-trans legislation.
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'You're making a choice to transition. And I'm struggling to understand why that person's choice has the ability to take away a right position from a biological girl,' she said.
'To me, in some sense .. I guess the phrase is 'you can't have it all.''
A third bill, LD 868, proposing co-ed teams as an alternative for trans students was defeated 7-5, but O'Hallaran said she would have voted in favor of the bill if it was amended.
Other Democratic lawmakers on the committee raised concerns about the lack of options for trans students, and the dangerous precedent these bills set for scrutinizing all girls and targeting those that don't present as stereotypically feminine.
'There is no choice in this. For those who do not identify according to their biological marker, they get one choice, and that's called co-ed,' said Sen. Rachel Talbot Ross, explaining her opposition to the bill. 'And if the school does not have the resources or can't put a regional team together, then we have de facto just discriminated against those students because we have not given them choice — choices.'
Rep. Ellie Sato (D-Gorham) said her concern was with the enforcement of the bills.
'It would backtrack the progress that we've made in how we're surveilling girls' bodies, because I'm very concerned that girls that do not present feminine with feminine attributes — cis or trans — will be targeted regardless, because they don't fit into the model of what we believe a woman or a girl should look like,' she said.
Rep. Rachel Henderson (R-Rumford) voted to support the restrictions on trans students because she said she believes in ​​'the truth of the biological reality of two sexes,' although the American Medical Association recognizes trans people and supports their right to affirming spaces.
'My hope is that my vote on these doesn't define me as someone who hates members of the LGBTQ community or wants to be cruel towards minors who are struggling with gender ideology, because it's simply not true,' Henderson said.
Some Republican lawmakers including Henderson voted against the broader rollback of trans rights. These included LD 1002, which would mandate that educators use the name and gender listed on a students' birth certificate even if it doesn't align with their gender identity, and two bills (LD 1337 and LD 1432) that aim to remove gender identity as a protected class under the Maine Human Rights Act.
Those bills will head to the full Legislature with a recommendation from the committee to reject them. .
Rep. Mike Soboleski (R-Phillips) said the intention behind LD 1432 is to retain gender identity protections under the umbrella of sexual orientation under the Maine Human Rights Act, but not designate gender identity as a separate protected class. He said he wanted to make the change to align with Title IX.
Barbara Archer Hirsch, executive director of the Maine Human Rights Commission, which enforces the act, disagreed. She said she doesn't think removing the gender identity language 'does anything to align or not align with the current administration's interpretation of Title IX.
Since gender identity and sexual orientation are not the same thing, she said protecting gender identity under the broader umbrella of sexual orientation would make complying with the Human Rights Act harder if the bill were to pass.
'I think that would create a lot of confusion,' she said. 'I think we would be getting more and more calls from folks not knowing what's covered and what's not, which was what was happening beforehand.'
O'Hallaran asked whether there was a way to retain gender identity protections while still making it clear that trans girls can't play in girls sports. As an example, Hirsch pointed to religious schools, which because of exemptions do not have to follow the protections for gender identity and sexual orientation, as long as they don't receive state funding.
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