Maine fought the law, and Maine won
The Trump administration can't defend the indefensible.
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“A few months ago, I stood in the White House and, when confronted by the president of the United States, I told him I’d see him in court,” Maine Gov. Janet Mills said last Friday. “Well, I did see him in court. And we won.”
After weeks of public fulminating, the administration quietly folded and quit trying to steal kids’ lunch money for the grievous sin of letting a couple of trans girls play sports.
It’s a heartening reminder that Trump, like any bully, can be fought and beaten.
“We are the federal law”
The trouble started at a February 21 White House lunch with the state governors.
President Trump’s speech that day was even more rambling and incoherent than usual. He explained that FEMA is bad, but he would soon be making it good by ensuring that no one from Alaska would be sent to Florida to say “boy, this is hot here” and overcharge for disaster relief work. He promised to put Treasury Secretary Scott Bessent on the job, or possibly Secretary of State Marco Rubio because “Marco's very good with money.” But not EPA administrator Lee Zeldin “because Lee's going to say, what's this all about, huh?” It does not appear to have occurred to Trump that FEMA is part of the Department of Homeland Security, run by Secretary Kristi Noem. (Congress has since moved to make this hallucination a reality, proposing to transform FEMA into an independent agency.)
At one point, Trump interrupted his stream of rambling semi-consciousness to single out Governor Mills for defying his executive order barring trans athletes from playing sports.
“I'm complying with state and federal laws,” she countered evenly.
“We are the federal law,” Trump spluttered, adding “you better do it because you're not going to get any federal funding at all if you don't.”
“We'll see you in court,” Mills replied.
“Good, I'll see you in court. I look forward to that. That should be a real easy one,” he raged. “And enjoy your life after governor, because I don't think you'll be in elected politics. Every state has a responsibility to comply with Title IX, to have an obligation, a legal obligation. And we'll be enforcing aggressively.” (Watch below.)
It was not, in fact, “a real easy one.”
Retaliation
The Trump administration’s attacks on Maine began immediately.
The day after Trump lashed out at Mills, the Departments of Education and Health and Human Services announced they were conducting investigations of the state for supposedly depriving cisgender girls of their civil rights by making them play on teams with trans girls.
Social Security Administrator Lee Dudek barred Maine residents from reporting births and deaths at hospital funeral homes, despite being told that it would increase fraud. He said it was worth it to ensure that “no money will go from the public trust to a petulant child.” After enormous public pushback, he reversed the order, saying "I was ticked at the governor of Maine for not being real cordial to the president. I’ll admit I screwed up.”
But Agriculture Secretary Brooke Rollins led the pack, slashing funds for school lunches.
“You cannot openly violate federal law against discrimination in education and expect federal funding to continue unabated,” she ranted in an April 2 letter to Governor Mills, adding that “this is only the beginning, though you are free to end it at any time by protecting women and girls in compliance with federal law.”
Brooke Rollins knows better than this. She is a lawyer with extensive state government experience working for Texas Gov. Rick Perry. She understands that there is a process to revoke federal funding to states, and it does not involve threatening to take a baseball bat to the recipient’s kneecaps if they don’t knuckle under.
Which is exactly what US District Judge John Woodcock said when the state sued the Trump administration to get its lunch money back.
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TRO
Title 20 U.S.C. § 1682 sets out the procedure for terminating a federal grant when the recipient fails to abide by grant terms. It involves a written report to both houses of Congress followed by a 30-day period of review. It affirmatively does not involve cabinet secretaries turning off the spigot from one day to the next and threatening to keep doing it until the grantee gives in to her demands.
Agriculture Secretary Rollins had no answer for that, except to complain that the court had no jurisdiction to hear the case. Which is awkward, because § 1683 says “upon a finding of failure to comply with any requirement imposed pursuant to section 1682 of this title, any person aggrieved (including any State or political subdivision thereof and any agency of either) may obtain judicial review.”
Finding that the USDA had failed to comply with the plain language of the statute, Judge Woodcock issued a temporary restraining order instructing Rollins to restore the funding. He also rubbished her claim that “if a child was fed today, they will be fed tomorrow,” noting that leaving intact funds for food purchases while cutting funds to transport and prepare that food means that there’s no way to get it into kids’ bellies. (He did not point out the clanging irony of using the singular they pronoun while indignantly insisting that gender identity is a woke plot.)
Title IX
As the state pointed out in its complaint, Title IX says nothing about trans athletes. It simply states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
In contrast, Maine’s Human Rights Act does bar discrimination on the basis of gender identity, including in athletic programs.
President Trump put out multiple executive orders declaring that there are only two genders and purporting to bar trans athletes from participating in sports, and Attorney General Pam Bondi referenced them in her own nasty letter to Mills, wherein she insisted that “requiring girls to compete against boys in sports and athletic events violates Title IX of the Educational Amendments Act of 1972.” But no court in the land has ever said that it violates Title IX to allow trans athletes to participate in sports. Indeed, the Fourth Circuit Court of Appeals found that it violated Title IX to bar trans kids from playing sports.
The Trump administration is simply using federal tax dollars as a weapon to enact its preferred social policy without the hassle of having to get Congress to pass a law. It would greatly prefer to bombastically state what the law is and then bully everyone into complying rather than test out their fantastical legal theories in court. Or, as Maine noted dryly, “the US DOJ has not initiated any legal proceeding” as a result of Secretary Rollins’s referral to the Justice Department for enforcement.
DOJ dockets lawsuit-shaped object
Perhaps realizing that it had gotten out in front of its britches, the Justice Department did eventually file a Title IX enforcement action on April 16.
The complaint is full of conclusory statements like “Title IX and the Implementing Regulations use of the term ‘sex’ means biological sex; the term ‘sex’ does not mean gender identity.” There is no citation for this claim, because none exists. In fact, Title 34 of the Code of Federal Regulations § 106.10 says: “Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”
The complaint also grossly mischaracterizes 34 C.F.R. § 106.41(b), claiming that it “requires that if an educational program separates teams by sex, the teams that the program designates as female teams must be completely separated by sex.” Here’s the actual language of the reg:
[A] recipient may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport. However, where a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered unless the sport involved is a contact sport.
In short, the complaint is heavy on rhetoric and light on actual law. It also identifies two supposedly trans high school athletes, omitting their names but describing their schools and rankings at specific sporting events, effectively doxxing children. The government is literally making a federal case because some kid took third place in a ski race in the C division.
It’s a fundamentally unserious argument, and not a single lawyer from the US attorney’s office in Maine put their name on it. The government didn’t even bother asking for an immediate injunction, likely aware that they would never get one, since that would require demonstrating likelihood of eventual success on the merits and irreparable harm.
So, after being more or less forced to file a lawsuit to vindicate their wholly specious interpretation of Title IX, the Trump administration is slow-walking it because they know that neither US District Judge Stacey Neumann nor the First Circuit is going to agree with them. (They’d probably prefer to get a case in the Fifth Circuit, if they could find a trans kid playing sports in Mississippi, Louisiana, or Texas.)
Savor the victory
But for now, thanks to elected officials standing up to punch back at a bully, Maine’s kids get to eat.
“It’s unfortunate that my office had to resort to federal court just to get USDA to comply with the law and its own regulations,” wrote Maine’s Attorney General Aaron Frey. “But we are pleased that the lawsuit has now been resolved and that Maine will continue to receive funds as directed by Congress to feed children and vulnerable adults.”
“It’s good to feel a victory like this,” Governor Mills said. “We took ‘em to court, and we won.”
That’s it for today
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Thanks for reading.
Liz, thank you for the update on the Maine scandal created by Drumpf and his vicious minions and the slap down issued by the court. Who would withhold funding to feed 172,000 of Maine's children as leverage to force Governor Janet Mills to violate the state's constitution that legally supports trans rights? The heartless assholes who populate every corner of the current regime/junta, that's who. The GOP is always looking for its latest "villain" to whip up the basest of the base. The focus is now on trans people who want to play sports based on gender identity. According to Maine statistics, there are only 2 trans athletes competing in high school girls' sports out of tens of thousands statewide. The NCAA reports that out of 510,000 athletes there are less than 10 who publicly identify as trans. All of this mishigas over a virtually non-existent problem just goes to show you how deranged and cruel these lunatics truly are.
It was good (as ever) to get further information about just how nasty and petty the anti-trans bigotry of the Trump administration is. But interfering with poor kids getting to eat cheap (free?) lunches marches things from bad to absolutely contemptible.
That said I do think whether or not trans kids get to play sport with their preferred gender is not a hill worht dying on. It's small, indeed tiny, potatos next to criminalizing gender affirming care.