January 30, 2014 | by Chris Johnson
Court rules for Maine trans student’s bathroom access
Kelly, Nicole, Jonas, Wayne Maines, GLAD Attorneys, Jennifer Levi, Ben Klein, gay news, Washington Blade

Kelly, Nicole, Jonas and Wayne Maines next to GLAD Attorneys Jennifer Levi and Ben Klein outside the court after oral argument. (Photo courtesy of GLAD)

Maine’s highest state court ruled on Thursday that schools within the state must permit transgender students to use communal bathrooms in accordance with their gender identity.

In a 5-1 decision, the Maine Supreme Judicial Court ruled in the case of Doe v. Clenchy that Regional School Unit 26 violated the Maine’s Human Rights Act by denying Nicole Maines, a transgender girl, access to the girl’s restroom.

It’s the first time a state court has ruled that trans students must be allowed to use a bathroom consistent with their gender identity.

Writing for the majority, Justice Warren Silver writes Nicole, named Susan Doe in the lawsuit, was “was treated differently from other students solely because of her status as a transgender girl.”

“RSU 26’s later decision to ban Susan from the girls’ bathroom, based not on a determination that there had been some change in Susan’s status but on others’ complaints about the school’s well-considered decision, constituted discrimination based on Susan’s sexual orientation,” Silver writes.

The lawsuit came about after officials at an Orono elementary school denied the fifth-grade trans student use of the girls’ restroom.

Although school previously allowed her access to girls’ facility, that changed when a male student began following her inside on two separate occasions, claiming he was also able to use the restroom. The student was acting under instructions from his guardian and grandfather, who was opposed to allowing Nicole access to the girl’s room.

According to the court decision, significant media attention resulted from the controversy. The school, over the Maines family’s objections, terminated Susan’s use of the girls’ communal bathroom and required her instead to use the single-stall, unisex staff bathroom.

Nicole was the only student that had to use the staff bathroom. As a result of the school’s decision, the Maines family decided to move to another part of the state after Nicole finished sixth grade.

The decision reached by the court applies not only to Nicole but to all transgender students who attend school within the state.

“Where, as here, it has been clearly established that a student’s psychological well-being and educational success depend upon being permitted to use the communal bathroom consistent with her gender identity, denying access to the appropriate bathroom constitutes sexual orientation discrimination in violation of the MHRA,” Silver writes.

The case was filed by Gay & Lesbian Advocates & Defenders and Jodi L. Nofsinger of Berman & Simmons in May 2011. Although the Maine trial court judge reviewing the case  in November 2012 ruled in favor of the school’s decision to block Nicole, the decision from the high court vacates that ruling.

Jennifer Levi, GLAD’s Transgender Rights Project director and the attorney who argued the case before the court, called the decision “a huge breakthrough for transgender young people.”

“Schools have a responsibility to create a learning environment that meets and balances the needs of all kids and allows every student to succeed,” Levi said. “For transgender students this includes access to all school facilities, programs, and extracurricular activities in a way that is consistent with their gender identity.”

Maine’s Human Rights Act prohibits discrimination in public accommodations on the basis of sexual orientation, which is defined in the law to include gender identity.

The school argued it was allowed to bar Nicole from the girls’ room under a separate law, Section 6501, requiring schools to provide “clean toilets” that are separated by sex. But the court ruled the point of that law wasn’t to modify the Human Rights Act and schools cannot “dictate the use of the bathrooms in a way that discriminates against students in violation of the MHRA.”

Justice Andrew Mead was the sole dissenting justice in the case and ruled that it’s up to the legislature whether it wants to require policy for schools on transgender student’s access to bathroom facilities.

“I depart from the Court’s casual dismissal of the fact that the plain language of a specific statute explicitly requires segregating school bathrooms by sex,” Mead writes. “The plain language of the provisions of section 6501 and the MHRA are in conflict, and I believe that principles of comity require us to defer to the representative branch of government to resolve the issue.”

But the majority decision in the case was hailed by the family of the student who inspired the lawsuit.

Wayne Maines, Nicole’s father, expressed gratitude that transgender students like his daughter won’t be “singled out for different treatment” thanks to the court decision.

“As parents all we’ve ever wanted is for Nicole and her brother Jonas to get a good education and to be treated just like their classmates, and that didn’t happen for Nicole,” Maine said. “We are very happy knowing that because of this ruling, no other transgender child in Maine will have to endure what Nicole experienced.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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