Maine Gov. Janet Mills speaks to President Donald Trump as Trump delivered remarks during a governors’ working session in the State Dining Room at the White House in February. Pool photos via AP

The Trump administration’s challenge of Maine’s policy allowing transgender athletes to compete in girls sports will provide an unusual test of a federal anti-discrimination law and could take years to resolve.

President Donald Trump’s executive order last month aimed at keeping transgender athletes out of girls sports relies on a new interpretation of Title IX, a 52-year-old law prohibiting discrimination on the basis of sex in educational programs that receive federal funding.

The administration argues that allowing transgender athletes to compete in girls sports is a form of discrimination because it deprives women and girls of fair athletic opportunities. It’s an argument that relies on a narrow definition of sex discrimination as being based only on biological sex.

It’s also an argument that has yet to be tested in courts, and some legal experts are skeptical that Trump’s argument would hold up.

WHAT IS SEX DISCRIMINATION?

The Trump administration’s interpretation relies on a narrow definition of sex to mean one’s biological sex of male or female.

But courts have traditionally interpreted sex discrimination more broadly to include discrimination based on gender identity or lack of conformation with traditional gender norms, said Erin Buzuvis, a professor and associate dean at Western New England University School of Law in Springfield, Massachusetts.

For example, courts have ruled that an employer who discriminates against a female employee because she is too aggressive is an example of sex discrimination, Buzuvis said.

“It’s not just biological sex, but other characteristics. … Once you’ve opened the door for that type of sex discrimination to make sense conceptually, then as a natural consequence, all kinds of LGBTQ sex discrimination gets tied up in that, too,” she said.

Athletics are a particularly tricky area because segregation based on sex is widely accepted to ensure non-discrimination, said R. Shep Melnick, the Thomas P. O’Neill Jr. Professor of American politics at Boston College.

“For a long time, the only debate was, how do we know the opportunities are equal?” Melnick said. “But then the question arose once the transgender issue came to the forefront — how do you assign people to one team or another? That’s really the issue.”

DIFFERENT INTERPRETATIONS

Different administrations have offered different interpretations of what constitutes sex discrimination under the law.

Last spring, the Biden administration finalized rules saying Title IX forbids discrimination based on sexual orientation or gender identity and that transgender students shouldn’t be treated any differently from their peers. The policy didn’t mention anything about transgender athletes, however.

The administration later was working on a rule that would have prevented the blanket banning of transgender athletes from competition without justification, but the rule was never finished and was abandoned in December after Trump won the presidential election.

And in January, a federal judge struck down the previous Biden administration rules aimed at protecting LGBTQ+ students.

In general, guidance from the Obama and Biden administrations leaned in favor of saying that schools should take gender identity into account when thinking about sex discrimination, Melnick said.

But Melnick suggested that whether sex includes gender identity is actually a decision to be made by states and local schools.

“Given the fact the statute is completely silent on this issue, it’s up to local school districts and the state on how to do that,” Melnick said. “I just don’t see how the statute gives the federal government any authority to weigh in on this.”

In Maine, officials have pointed to the Maine Human Rights Act, which prohibits discrimination based on gender identity in all educational and extracurricular activities, as their basis for allowing transgender athletes to compete in girls sports.

The Trump administration’s interpretation of Title IX is “uncharted,” although courts have weighed in before on the issue of transgender athletes and have found that categorical bans violate the law, said Shiwali Patel, senior director of safe and inclusive schools at the National Women’s Law Center, a nonprofit that advocates for women’s and LGBTQ+ rights.

“How does one expect to enforce this when it relies on such a narrow definition of sex, which is sex assigned at birth?” she said. “It allows anyone to question any woman or girl based on how they look and how they act.”

Meanwhile, critics of Maine’s policy allowing transgender athletes in girls sports say Trump’s reading of the law is essential to keeping sports safe and fair for female athletes.

“Denying biological reality and allowing males to compete on female athletic teams has been a huge setback for women,” said Rep. Liz Caruso, R-Caratunk, at a news conference last week where she unveiled state legislation to keep transgender athletes out of girls sports.

HOW COULD INVESTIGATIONS, LAWSUIT PLAY OUT?

The U.S. Department of Education has launched a Title IX investigation into the Maine Department of Education and the Cumberland-North Yarmouth School District. The U.S. Department of Agriculture also is investigating the University of Maine on Title IX grounds.

The Title IX investigations could take months or years to resolve. Many investigations in the past have been closed with no findings of violations, Melnick said, while others are often resolved through agreements that spell out conditions schools will agree to in the future.

Melnick said it’s possible some kind of compromise could be reached in Maine, but in many cases the investigations themselves are meant to be a form of punishment.

“The investigation is a way of publicizing their case,” he said. “It’s a way of making life difficult for school officials.”

Following Title IX isn’t technically mandatory, but it is required if schools want to receive federal funding, Buzuvis said.

But both Buzuvis and Melnick said it’s unlikely Trump would follow through on his threats to withhold federal funding. They said the federal government has never cut off funds over failure to follow Title IX.

Education Week, a news organization focused on K-12 education, reported one instance in Georgia in 1990 where funds were briefly revoked and then restored after the school district in question turned over information the U.S. Department of Education had requested.

Melnick noted that cutting off funds is procedurally complicated, requiring notification to Congress and other steps. “Your governor should not be intimidated by this,” he said.