Maine’s highest court ruled on January 30 that a transgender girl attending Maine public schools is entitled to use the girl’s restroom. Voting 6-1, the court reversed a contrary ruling by the Penobscott County Superior Court. The dissenting judge agreed that the right of transgender students to use the restroom of their choice should be protected, but argued that the legislature needed to amend the state’s public restroom statute to reach that result. Justice Warren M. Silver wrote the opinion for the court.
The court allowed the plaintiffs to use pseudonyms to protect confidentiality, so the plaintiffs were identified as John and Jane Doe, parents of Susan Doe. Susan, born male, began to identify as female as early as age two. She began attending school at the Asa Adams School in Orono, and generally wore gender-neutral clothing until third grade, when, as the court describes it, “her identity as a girl became manifest” and, for the first time, the school’s principal became aware that Doe was transgender. Students in the early grades used single stall restrooms, and Susan was allowed to use the single-stall girl’s room without incident. In third grade, teachers and other students referred to Susan as she and used her preferred name, and by fourth grade, she was dressing and appearing exclusively as a girl.
During Susan’s fourth-grade year, the school implemented a formal plan to “address Susan’s gender identity issues and her upcoming transition to fifth grade, where students used communal bathrooms separated by sex.” By this time, Susan had received a formal diagnosis of gender dysphoria. “School officials recognized that it was important to Susan’s psychological health that she live socially as a female,” wrote Justice Silver. And school officials did not interpret the state’s restroom facilities law as prohibiting somebody in Susan’s position from using the girls’ bathroom. A team was convened, including Susan’s mother, her teachers, a guidance counselor and the school district’s director of special services to deal with how the school would treat Susan. They agreed she would be treated as a girl and could use the communal girls’ restroom. They agreed that requiring her to use the boys’ room was not acceptable. Indeed, the principal testified in this lawsuit that it would not have been safe for her to do so. There was a unisex staff restroom on the school premises, which the team saw as available in case Susan’s use of the girl’s restroom became “an issue.”
In the fifth grade, it became “an issue,” because the grandfather of a male student, who was the student’s guardian, instructed him that if Susan was free to use the girls’ restroom, than so was he. This student followed Susan into the girls’ restroom on two occasions, and “the controversy generated significant media coverage.” Schools tend to react to controversy by wimping out, which is what the school did in this case, directing Susan that she had to use the single-stall, unisex staff restroom. Susan was the only student directed to use that room.
The special team met again to discuss Susan’s transition to middle school, and school officials insisted that Susan would not be permitted to use the girl’s restroom in middle school. Her parents objected to this, and at the end of her sixth grade year, they moved to another part of the state to transfer her to another school.
But even before the move, they filed a complaint with the Maine Human Rights Commission against the school district, represented by Gay & Lesbian Advocates & Defenders, the Boston-based New England LGBT rights law firm. Maine’s Human Rights Law specifically bans discrimination in public accommodations because of sexual orientation, and the term sexual orientation as used in the statute is defined to include gender identity. For the first time, the school district argued in response that the state statute requiring schools to provide separate restrooms for male and female students supported its position, and the Superior Court granted summary judgment to the school district on that basis.
Rejecting that interpretation, Justice Silver wrote that the “sanitary facilities” provision was intended “to establish cleanliness and maintenance requirements for school bathrooms, as well as requirements for the physical layout of toilet facilities. It does not purport to establish guidelines for the use of school bathrooms. Nor does it address how schools should monitor which students use which bathroom, and it certainly offers no guidance concerning how gender identity relates to the use of sex-separated facilities.” On the other hand, the human rights act was intended to “prohibit discrimination against transgender students in schools.” Justice Silver rejected the school district’s argument that the sanitary facilities provision “preemptively created an exception” to the human rights law requirements. Instead, he insisted that “a consistent reading of the two statutes avoids conflicting, illogical results and comports with the legislative intent by giving effect to both provisions.”
In this case, said the court, school administrators had accepted at an early stage that Susan was a girl and would be treated as a girl, and the school had itself determined that she could use the girls’ room. The later decision to limit her to the staff room was not due to any change in her status, but “on others’ complaints about the school’s well-considered decision,” and this was discriminatory. The court said that the school’s discrimination could not be “excused” by “compliance” with the sanitary facilities law.
The court pointed out that it was not holding that “any person could demand access to any school facility or program based solely on a self-declaration of gender identity or confusion without the plans developed in cooperation with the school and the accepted and respected diagnosis that are presented in this case.” Thus, the court rejected the dissent’s argument that its interpretation of the statutes would require schools “to permit students casual access to any bathroom of their choice.”
Dissenting Justice Andrew M. Mead insisted that he supported the right of a transgender student to be free from discrimination at school because of gender identity, but he could not agree with the majority’s interpretation of the sanitary facilities statute. “The statutory directive to segregate bathrooms in schools by sex, and providing for separate entrances and exits for those bathrooms, clearly anticipates that the use of a bathroom would be restricted to the sex for which it has been designated,” he insisted, disagreeing with the court’s statement that the schools had the prerogative to create their own policies concerning how the bathrooms were to be used. He found the “plain language” of the two statutes to be in conflict, and said that the court should have abstained from resolving the conflict, deferring the issue to the legislature.
In a concurring opinion, Chief Justice Leigh I. Saufley agreed with the court’s result, but strongly supported Justice Mead’s call for the legislature to address the issue. “Put simply,” wrote Saufley, “it could now be argued that it would be illegal discrimination for a restaurant, for example, to prohibit a man from using the women’s communal bathroom, and vice versa. I agree with the dissent that it is highly unlikely that the Legislature actually intended that result. Accordingly, on this matter of public policy, it would benefit the public for the Legislature to act quickly to address the concern raised by the dissent in this matter.”
Jennifer Levi, a law professor who works with GLAD on gender identity cases, argued the appeal on behalf of the Does.