Suit over transgender students’ bathroom rights to go forward, judge says

Posted April 20, 2011, at 11:02 a.m.
Last modified April 20, 2011, at 8:47 p.m.

BANGOR, Maine — A lawsuit over a transgender student’s use of the girls’ bathroom at an Orono elementary school may go forward, but only after a Superior Court justice dismissed the most controversial count.

Justice William Anderson earlier this month dismissed the part of the lawsuit that claimed administrators at the Asa Adams School were obligated under the Maine Human Rights Act to allow the child to use the girls bathroom rather than a restroom for staff.

“ .. [T]his ‘accommodation’ claim would impose upon Superintendent [Kelly] Clenchy and the various school entities defending this suit an obligation to accommodate [the child’s] transgender status by allowing her to continue using the girls’ bathrooms consistent with her gender identity,” the judge wrote. “Neither the language of the [Maine Human Rights Act], the language of the [Maine Human Rights Commission’s] own internal regulations, nor prevailing case law interpreting the Civil Rights Act requires this type of accommodation.”

However, the judge ruled that two other aspects of the lawsuit could proceed.

In his 10-page decision dated April 1, Anderson ruled that a claim that the school discriminated against the transgender student when the child was a fifth-grader there during the 2007-2008 school year and another seeking damages may go forward.

A transgender person generally is considered someone of one biological sex who identifies himself or herself as belonging to the opposite gender.

Anderson’s ruling involved a child born a male who identifies as a female, according to court documents. The child no longer attends the school.

The lawsuit was filed in Penobscot County Superior Court by the Maine Human Rights Commission and the student’s parents in June 2009 after the MHRC ruled in the child’s favor.

Defendants in the lawsuit include Clenchy, the former superintendent of the Orono School District, now Riverside RSU 26, and officials at Asa Adams School.

Efforts to reach John Gause, the attorney representing the MHRC, and Jodi Nofsinger, the Lewiston attorney representing the parents of the transgender child, were unsuccessful Wednesday.

“The school is pleased with the decision and considers it, essentially, to be a complete victory,” Melissa Hewey, the Portland attorney representing school officials, said in an email Wednesday. “Justice Anderson held that there is no duty under the Maine Human Rights Act to  permit students to use the restroom of the gender with which they identify, which was the precise issue we raised and wanted a ruling on in our motion to dismiss.

“All that is left of the case, in our view, is whether individuals at the school intentionally discriminated against the student in this case,” Hewey said. “This is a factual issue that cannot be decided at this stage of the proceedings but we know that no school administrator or staff member ever intentionally discriminated against this student and are thus confident that that portion of the claim will also ultimately be dismissed as well.”

A bill that would allow the operator of a restroom or shower facility to decide who may use which gender’s restroom is pending before the Legislature. A hearing held earlier this month in Augusta generated heated debate.

The bill’s sponsor, Rep. Kenneth Fredette, R-Newport, served on the Maine Human Rights Commission when it decided that Orono schools and an Auburn Denny’s Restaurant discriminated against transgendered females by not allowing them to use women’s restrooms. Fredette disagreed with those decisions.

“If passed, this law would, in a sense, validate the Orono School Department’s position in this matter throughout this case by recognizing that this is not an issue that is best addressed by a bright line requirement but rather must be addressed on a case by case basis considering the people involved and the circumstances presented,” Hewey said Wednesday.

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