AUGUSTA — Several central Maine schools are named in a federal lawsuit filed by a political organization that aims to restrict enforcement of new Title IX guidelines about protection against discrimination over gender identity. 

Pender Makin, commissioner of the Maine Department of Education, speakers to legislators on Feb. 1 in the Cross State Office Building in Augusta. Joe Phelan/Kennebec Journal

The new guidelines now face a federal injunction filed by a Kansas-based political organization Moms for Liberty, which says the new guidelines do not give schools clarity on how to determine gender identity and because “transgender students can use the bathroom of the gender they closely align with,” it can make girls who are not transgender uncomfortable in a school setting.  

While Maine’s education commissioner acknowledges the federal lawsuit has fostered confusion about the legality of the guidelines, she said local officials from affected schools may uphold new protections in the Title IX updates because they are already guaranteed under the Maine Human Rights Act and under most school board adopted policies.

“It is not illegal for a school to implement the new Title IX regulations, even if they serve children of the Moms for Liberty group,” Pender Makin, commissioner of the Maine Department of Education, said in an email. “It is only illegal for the federal government to enforce those rules in those specific schools.”

Title IX ensures an education environment that is free from discrimination of sex or race. Under the new guidelines introduced on Aug. 1, it includes protection for transgender, or gender non-conforming, students in any education program that receives federal funding.

The federal injunction lists 30 schools in Maine and 18 school districts, including Cony Middle and High School in Augusta, all three Winthrop Public Schools and Waterville Senior High School. 

School officials say that since the injunction is federal, only the federal government has power to enforce it. 

Makin said the injunction unfortunately has created “confusion and distraction” and the action “is being used by some to threaten local schools with lawsuits if they attempt to enact the new Title IX regulations.”

The Maine Human Rights Act already grants a similar nondiscriminatory promise to students, and adults, and has already faced challenges in school districts, like the Gardiner-based Maine School Administrative District 11. Some parents have challenged the MSAD 11 bathroom policy for transgender students during public comment sessions at school board meetings that at times have become heated.

The federal government introduced new Title IX guidelines on Aug. 1 that include wider definitions of gender identity, which is what the Moms for Liberty take issue with — they allege that the Department of Education did not clarify how a school determines a student’s sexual identity and that it’s contrary to the law. The lawsuit gives the example of a transgender girl using the girl’s bathroom and the possibility of making a student uncomfortable in a private place. 

Tiffany Justice, co-founder of Moms for Liberty, said in a statement to the Kennebec Journal that the organization is proud of the process it prompted by “halting the Biden Administration’s overreach” and “we will continue to monitor future rulings to determine any future litigation steps.” 

The group filed the initial lawsuit in the United States District Court for the District of Kansas in May and in July, the court ruled in Moms for Liberty’s favor and granted an injunction on the new Title IX guidelines in the plaintiff states of Kansas, Alaska, Wyoming and Utah. The July ruling also allowed the group to add every school where a “mom” has a student – or future student – which brought the injunction to 26 states, including Maine.

“The injunction does only one thing from a legal perspective: it prevents the federal government from enforcing the new Title IX regulations in schools where children of the Moms for Liberty members attend. The injunction does not apply to state governments nor to local schools, so there is no legal barrier preventing a local school from implementing the updated Title IX regulations,” Makin said.  

The decision is preliminary in nature until an appellate court rules differently. 

Asked how the injunction impacts Maine, Kim Hermann, executive director of Southeastern Legal Foundation, said in a statement “we are monitoring state activities to try and circumvent the federal court injunction and we are considering additional state actions as well.”  

Cony Middle and High School are named on the injunction, but the remainder of the Augusta Public Schools are not. Also named are all three of the Winthrop Public Schools, Readfield Elementary School, Waterville Senior High School, among others in central Maine. 

Augusta’s Assistant Superintendent Christina Wotton explained to the Augusta Board of Education at a recent policy committee meeting that the injunction being only at Cony Middle and High School might create confusion with new, or active Title IX cases.

“Cony Middle and High School are subject,” explained Augusta’s Assistant Superintendent Christina Wotton at a school board policy meeting earlier this month. “This is from the Moms of Liberty. They filed an injunction and while the court works that out, it’s advised for the middle and high school to use the 2020 policies, laws and regulations while the other schools, we move forward with the changes. That’s going to be tricky for myself and the board to deal with.” 

Though Winthrop Public Schools is listed on the injunction, the school board started this month to adopt the new Title IX regulations, which the board can do under Maine law, as long as they do not enforce it the 2024 version of the law.

In addition to more protection for gender identity, students are now protected for race, disability, religion and even pregnancy status. There is also a more extensive reporting, grieving and resolution process for cases.

School Board member Ivy Corliss brought up the injunction at the Sept. 18 school board meeting and how updating the policy works alongside the injunction. The school district’s Title IX Officer, Alexis Dascoulias, did not know if it was a conversation for the school board to have at the public meeting.

Makin said a superintendent “could decide not to implement the updated Title IX regulations and related protocols” in schools named in the lawsuit, but could effectively still uphold the same updated protections “under the policies and protocols within local school board policy or state of Maine statute.”

Even so, Makin said the end result is the injunction creates confusion and sets districts up as the “lightning rods of the divisive, emotionally-charged, rhetoric.”