Panel rules against Orono school in transgender bathroom access

Posted Sept. 20, 2010, at 4:30 p.m.

AUGUSTA, Maine — The Maine Human Rights Commission ruled Monday that Orono Middle School unlawfully discriminated against a sixth-grader during the 2008-2009 school year by not letting the male-to-female transgender student use the girls’ bathroom.

This is the same student whose parents filed a similar discrimination complaint against Asa Adams Elementary School in Orono when their child was a fifth grader there during the 2007-2008 school year. That case resulted in the same ruling against the school district in June 2009.

Also Monday, the commission members again began talks about developing anti-discrimination guidelines specifically for schools under the Maine Human Rights Act.

The parents of the child, who no longer attends schools in the district, wrote in their latest complaint to the commission that she experienced anxiety and depression after officials at Orono Middle School forced her to use a gender-neutral bathroom and her peers picked on her.

“In choosing to disallow [her] to use the girls’ bathroom facilities, the school was implicitly isolating and alienating her from other students,” the parents wrote. “We determined that we needed to modify our actions to do the best we could to ensure [our child’s] safety.”

The school’s response stated that the district accommodated the child by training the staff, educating the students, giving the transgender student her own bathroom, giving her her own locker room and meeting with her parents almost daily.

“For the most part, she appeared to be happy and involved in the school community,” the school district wrote.

In addition to the bathroom complaint, the student’s family alleged that Orono Middle School subjected her to a hostile educational environment.

The commission’s investigator did cite in her report derogatory remarks made by other students as well as several allegations of stalking by a boy who once followed the transgender student into the girls room and harassed her by calling her “faggot.”

But the commissioners agreed with the investigator that there were “no reasonable grounds” to believe the school subjected the student to a hostile educational environment.

Neither side was in attendance at Monday’s meeting because neither party filed a letter of disagreement with the commission investigator’s report.

“I don’t think it changes anything,” the school district’s lawyer, Melissa Hewey, said regarding the commission’s decision. “I think it’s a good ruling in that it recognized the efforts the school went through to help the student in terms of the harassment issue. The bathroom issue is something the court has to rule on.”

The district is currently fighting a lawsuit against the child’s family in Penobscot County Superior Court. The new decision against the middle school will likely be added to the lawsuit, which was filed after the commission’s ruling in the Asa Adams case.

Hewey said the Orono school district has not changed its policies.

“The student is not there, so it is currently not an issue,” Hewey said.

She said no other students in the district have since asked for accommodations related to their gender.

The family’s lawyer said Monday that they filed the human rights complaint against Orono Middle School because the school’s policies remain unchanged.

“[Orono Middle School] continued to discriminate against the child after the last [commission] decision. It is clear we have to pursue this further to get them to comply,” attorney Jodi Nofsinger said Monday after the ruling.

Nofsinger said the legal battle stretched beyond this one child and is more about making the Orono schools comfortable educational environments for other transgender children who might attend the schools in the future.

“They continue [discrimination] up until the present time. They are in violation to the law,” Nofsinger said. “The school’s policy still has not changed.”

Members of the Maine Human Rights Commission also discussed Monday plans to work in coordination with the state education commissioner to develop rules regarding sexual orientation, race, national origin and disabilities as they apply to education under the Maine Human Rights Act. Currently, the Maine Human Rights act does not have antidiscrimination policies in those areas. Talks regarding rule-making should begin in early 2011, after the gubernatorial election and after a new administration is in place, according to Patricia Ryan, the executive director of the Human Rights Commission.

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