The town of Richmond was trying to decide if it should amend a school policy to prohibit transgender girls from competing in girls sports. Among public commenters, debate was just about evenly split: should they follow a state law that allows them to compete, or an executive order signed by President Donald Trump that doesn’t?

The school board in this small Sagadahoc County town ultimately voted 3-2 in mid-October to align its policies with the executive order, becoming at least the eighth Maine district to do so. They’ve gone against the advice of the law firm that provides counsel to most of the state’s districts. Some, including those in Augusta and Kennebunk, have discussed, but ultimately declined, to adopt those changes.

Ever since Trump signed the order shortly after retaking office, his administration has threatened to pull funding from schools that allow students assigned male at birth to compete on girls sports teams in an interpretation of Title IX, the federal law that prohibits sex-based discrimination in education. Maine’s governor challenged Trump on the issue and pledged to see him in court, which led to the the Justice Department filing a lawsuit against the state. That case is set to go to trial next April.

But districts like Richmond aren’t waiting for legal clarity, and the conservative Maine Policy Institute and the Maine Chapter of Parents’ Rights in Education are working directly with others that want to make that same leap. Their calculation is that state officials won’t challenge them.

That may not be true.

The state agency responsible for enforcing the Human Rights Act could already be doing so, its director acknowledged, although all complaints are confidential until their investigations are complete.

Daniel Farbman, an associate professor at Boston College Law School, said executive orders like this one are not laws themselves, just proposed interpretations of existing statute. A change to Title IX could be decided by the courts, but in the meantime, he said, state law still applies.

In the meantime, a group of Maine Republicans are asking voters to sign a ballot initiative that would change state law to align with the Trump administration’s order. Petitioners need to gather 68,000 signatures from registered voters to put the initiative on next year’s ballot and were out at polling locations on Tuesday to kick off that process.

STATE ENFORCEMENT

Maine has required schools to allow students to participate in extracurricular activities without discrimination on the basis of gender identity since 2021. The law is enforced by the Maine Human Rights Commission, a quasi-state agency that oversees complaints of discrimination on the basis of race, sex, gender identity and religion in areas like employment and education.

The commission enforces the law through investigating submitted complaints, and it’s unclear if the districts that have changed their Title IX policies have faced any. All submissions to the Human Rights Commission remain completely confidential until they’re resolved, Director Kit Thomson Crossman said in a recent interview. The agency has two years from the filing of a complaint to complete its investigation, and it often does take that full time.

“So if a complaint was filed today, I might not be able to tell you anything about it until October of 2027,” Thomson Crossman said.

The Maine Human Rights Commission, the quasi-state agency responsible for enforcing the state’s anti-discrimination law, is required to keep all complaints confidential until they’re resolved. (Joe Phelan/Staff Photographer)

An annual report released last week shows the commission is expecting to get more complaints this year because districts have adopted the federal government’s “as-yet untested interpretation of Title IX.”

The agency is capable of initiating investigations of its own, but those also remain confidential until resolved, and Thomson Crossman said because the agency’s small staff handles between 600 and 800 complaints annually, it’s rare.

But, this “would certainly be a situation where we would be considering that.” 

And even if the commission hasn’t initiated any complaints, it doesn’t mean that state laws don’t still apply.

“As far as we’re concerned, the Human Rights Act still requires schools to provide a safe education environment for all of their students, cisgender or transgender,” Thomson Crossman said. “Students are required to be able to play sports on the team that corresponds with their gender identity. They’re required to be able to use sex-segregated facilities that correspond with their gender identity.”

The law firm Drummond Woodsum, which provides legal counsel to the majority of Maine districts, has advised school boards to hold off on making changes to transgender student policies and keep following state law.

“Our advice has been, let’s see what the court does with this issue, and then if we need to revise policies to reflect new guidance from the Supreme Court, we can do that,” said attorney Isabel Eckman, who leads the firm’s School Law Group.

MAINE EDUCATION INITIATIVE

The Maine Education Initiative, a project run by the right-wing Maine Policy Institute and in partnership with the Maine chapter of Parents’ Rights in Education, has been leading the effort. The initiative provides districts with model policies, letters, workshops and other resources.

Jacob Posik, a spokesperson for the Maine Policy Institute, said the organization has worked with about a dozen districts, including all of those that have adopted the Title IX changes.

Allen Sarvinas, director of the parents’ rights chapter in Maine, told the Richmond school board — seizing on a comment Thomson Crossman made to the Bangor Daily News in August — that the Human Rights Commission did not plan to take independent action against any school district for changing its policies.

Posik said it’s proof the commission “does not intend to go after schools that adopt their own Title IX policies.”

Thomson Crossman said those seem like willful misinterpretations.

“Just because we, in August, had no plans to file a commission-initiated complaint against these school districts doesn’t mean that we don’t expect the school districts to still comply with the law,” they said. “And it doesn’t mean that we would never take action.”

Posik justified the approach by saying “federal law supersedes state law” and said that all Maine school districts “are operating in a legal gray area currently” until the dispute is resolved.

Farbman, from Boston College, said it’s true that a federal change to Title IX would supersede state law, as established by the Supremacy Clause of the Constitution. But the executive order isn’t that: it does not preempt state law, he said, it’s just an interpretation not yet tested by the courts.

He said this has been a consequence of Trump’s flurry of executive orders: “placing things in question that might not otherwise be in question.” He pointed to an executive order about birthright citizenship, which he said straightforwardly violated the Constitution.

Farbman said the orders create confusion as people believe them to be federal law and attempt to comply either because they agree with the interpretation, or because they’re afraid of the consequences if they don’t, something he described as a kind of chilling effect.

Eckman, with Drummond Woodsum, offered a similar read of the situation: the president cannot change statute via executive order, she said, but it has created confusion for her clients.

“It’s a really unfortunate situation where it’s put public school districts in the crosshairs of a much larger kind of culture war,” she said. “I do think our public school clients are really wanting to figure out how to follow the law, by and large.”

In addition to the Justice Department’s lawsuit against Maine, she said there are two cases on the U.S. Supreme Court’s docket next year could provide official legal clarity on that question.

PLAYING OUT IN SMALL TOWNS

A sign outside Richmond Middle/High School in Richmond, photographed in October 2022. (Staff photo by Joe Phelan/Staff Photographer)

In Richmond, school board member Liana Knight invoked that advice in October, during one of two public workshops on the policy change.

“An executive order is not a law. It’s a suggestion for how a law should be interpreted,” she said. “I am struck that we have reached out to our lawyer, I think at least twice about this, and both times the lawyer has recommended that we just wait.”

Board Chair Amanda McDaniel told the Press Herald she respects the advice of attorneys but she isn’t personally concerned about the conflict with state law.

“We’re put in these positions to make decisions on behalf of the community,” she said. “We can take all advice into account and still move forward with how we feel things need to be done.”

School districts based in Hodgdon, Jay, Sullivan, Danforth, Turner, Baileyville, Wales have made the same calculation.

All of them represent small, conservative-leaning communities, most with only a few hundred students. It’s unlikely any have transgender student athletes competing on girls sports teams since the Justice Department’s lawsuit cites only three in the entire state. 

In Richmond, those who opposed the policy changes, including several students and teachers, described it as a solution without a problem, argued it unnecessarily exposed the district to litigation, and said the changes targeted a very small and vulnerable student population. Supporters, many who identified themselves as grandparents, invoked fairness in girls sports.

“If we push this forward now, it means we are taking initiative to take rights away from one of our most vulnerable populations,” Knight said. She was one of two votes against the policy change.

McDaniel said in the end it came down to the fact that the majority of the board members felt it was the right thing to do.

A man sits beside a sign that reads “Save Girl’s Sports — Support Title IX” ahead of a Regional School Unit 73 board vote in June on a policy addressing Title IX compliance and sex-based privacy. (Rebecca Richard/Staff Writer)

In Danforth-based MSAD 14, superintendent Margaret White resigned after the board voted unanimously to change its policies, the Bangor Daily News reported.

In Jay-based RSU 73, school board member Bryan Riley quit in July, citing health issues but also describing the board’s recent decision as “unnecessary and reckless.”

“Fishing for a legal opinion that matches one’s personal beliefs is a good way to waste taxpayer money and erode the trust that exists between faculty and the board,” Riley wrote in his resignation letter.