Panel backs transgender woman in restroom case

Posted May 19, 2009, at 10:28 p.m.

AUGUSTA, Maine — The Maine Human Rights Commission decided Monday that a transgender woman was discriminated against at a Denny’s restaurant in Auburn when management would not let her use the ladies room until she had sex reassignment surgery.

While the lawyer representing the Denny’s owners said that the 3-2 decision could have far-reaching, negative consequences for all Maine businesses with shared restroom facilities, it was hailed as a civil rights victory by the Maine Civil Liberties Union and advocacy organization Equality Maine.

“It’s important to know that people have rights, including transgender [people], and that businesses are not free to discriminate,” said Zachary Heiden, the legal director of the MCLU.

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Heiden said that many people make the faulty assumption that being transgender is mostly about genitals.

“That’s a part of it, but the essence of who they are is not what their genitals look like,” he said.

The incident in question happened on Oct. 25, 2007, when Brianna Freeman of Lewiston — formerly known as Bruce — used a locked stall in the ladies room while “dressed clearly” as a woman, according to the investigator’s report. Efforts to reach Freeman were unsuccessful.

Another customer complained to the manager about sharing a public restroom with a man, said attorney Chad Cloutier, who represents the Rockport company Realty Resources Hospitality LLC. The company owns and operates six Denny’s family restaurants, Cloutier said.

“The customer was very upset, was irate, had threatened to call police,” he said. “A few days later, management decided that it would be in the best interest of Denny’s to ask the customer to use the men’s room until sex reassignment surgery.”

Freeman was a regular customer of the restaurant. After being banned from the ladies room, Freeman filed a complaint with the commission on April 17, 2008.

Cloutier argued to the commission that a discrimination decision would require that Maine businesses essentially decide whether a person is transgender or if they might want to use a particular restroom or locker room for purposes of “sexual perversion.” Making this accommodation is a violation of a woman’s right to privacy, he said in a press release, as well as a “significant risk to the health and safety of [the restaurant’s] customers, particularly children.”

“It’s almost an untenable position for businesses,” he said. “It really is a slippery slope. This claimant may be perfectly safe and use the bathroom in a perfectly normal way, but what’s to prevent a person of some devious intent … the right not to share a bathroom?”

Betsy Smith, executive director of Equality Maine, strongly disagreed.

“How does it pose a risk to children that someone uses the bathroom? That assumes that that person somehow harms children,” she said. “It’s so outrageously discriminatory.”

Smith said that forcing a transgender woman to use a men’s room is not safe.

“This company needs diversity training to understand what it means to be gender-nonconforming,” she said.

Kevin LaBree, the vice president and director of operations for Realty Resources Hospitality, said that he was just concerned about the comfort and care of his guests.

“Denny’s is a family restaurant chain,” he said. “I am going to do what’s in the best interest of my customers.”

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