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Judge hears arguments in lawsuit over Orono school’s treatment of transgender child

Posted Sept. 19, 2012, at 10:02 a.m.
Last modified Nov. 21, 2012, at 2:05 p.m.
Superior Court Justice William Anderson hears oral arguments in a motion for summary judgement in a lawsuit over the alleged treatment of a transgender child.
Linda Coan O'Kresik | BDN
Superior Court Justice William Anderson hears oral arguments in a motion for summary judgement in a lawsuit over the alleged treatment of a transgender child.

BANGOR, Maine — A Superior Court judge will decide whether a lawsuit filed by an Orono couple over the local school district’s handling of their transgender child’s transition from male to female will go forward.

A transgender person is born one biological sex but identifies himself or herself as belonging to the opposite gender.

Justice William Anderson heard oral arguments on motions for summary judgments Wednesday morning at the Penobscot Judicial Center. His questions for attorneys centered on whether the school district broke the law in 2007 when it stopped letting the child use the girls bathroom and had her use a staff bathroom after the grandfather and legal guardian of a male classmate complained.

“This is a close case,” Anderson said at the end of the hourlong hearing. “It’s a very interesting case and a very important case.”

It is the first case in Maine to address a transgender student’s right to use the bathroom of the gender with which he or she identifies.

There is no timetable under which the judge must issue his decision, but Anderson said at the end of Wednesday’s hearing that it would be “fairly quickly.” The case tentatively is scheduled to go to trial in November or December. The plaintiffs have asked for a jury-waived trial.

The child’s parents — on her behalf, along with the Maine Human Rights Commission — sued the district in November 2009 in Penobscot County Superior Court over her access to the girls bathroom and the school’s treatment of her. The lawsuit was filed five months after the commission found the school had discriminated against the girl.

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

The family and their child are not identified in the lawsuit but are referred to as the Does. Subsequent news stories, however, have identified the parents as Wayne and Kelly Maines and their twin children as Nicole and Jonas, both now 14. In court documents and in the courtroom Wednesday, family members were not named but referred to as the Does, with Nicole Maines being called “Susan Doe.”

The girl and her parents attended the hearing but did not testify and did not address the court. The family left the courthouse without speaking with reporters.

The lawsuit claims that the school discriminated against the girl when officials had her use a staff bathroom during the 2007-08 school year. It also alleges that the district’s “eyes-on” policy, instituted the following year while she was a sixth-grader at the Orono Middle School, caused more harm than good.

Her access to the girls bathroom was the only issue discussed at Wednesday’s hearing.

Nicole told the Bangor Daily News last year that she found the “eyes-on” policy “stressful.”

“An adult would stand 15 feet away from me wherever I went,” she said. “When I would go to the bathroom, they would follow me. When I would go to the lunchroom, they’d follow me. It was like I had an invisible string attached to me and they were on the other end. It was ridiculous.”

Melissa Hewey, the Portland attorney who represents the school district, said last year that the “eyes-on” practice is common and endorsed by the Maine Administrators of Service for Children with Disabilities. She also said it was instituted after Wayne and Kelly Maines met with middle school officials and expressed concern about potential bullying.

The family is seeking damages, claiming the mother and the two children, both born identical twin boys, were forced to move to southern Maine, where they still live, to find a more supportive school environment. The father remains in Orono, where he is employed by the University of Maine.

Last year, Anderson dismissed the portion of the bathroom claim that alleged it was not a “reasonable accommodation” under Maine law to have the child use a staff bathroom rather than the girls bathroom. He let go forward a claim that school officials discriminated against the child when they refused to allow her to use the girls bathroom, according to John Gause, an attorney for the Maine Human Rights Commission, which has sued the district over the bathroom issue.

“Today’s hearing was just about what the law says and not what the law should be or what’s good for any individual student,” Hewey said after the hearing. “Our point of view is that there is a clear regulation on the books that says we can do what we did and, therefore, we cannot have discriminated.”

That regulation says that schools are required to provide separate bathrooms, locker rooms, showers and other facilities for males and females. Hewey said that the section of the Maine Human Rights Act that deals with gender identity and public accommodation does not apply in this case.

The family’s attorney, Bennett Klein of Gay & Lesbian Advocates & Defenders in Boston, disagreed. He told Anderson that Hewey’s interpretation would mean that a transgender student who was born a male but identified as a female could not use the girls bathroom at school but could use the women’s bathroom at a museum during a class field trip.

Klein disagreed with Hewey and the Maine Human Rights Act’s section of gender identity discrimination applied to schools.

During Wednesday’s hearing, Anderson asked Gause several times why the Maine Human Rights Commission had not clarified the law for schools. Gause said that twice — once in the Doe case and again in a second case involving access by a transgender adult to a bathroom at Denny’s Restaurant in Auburn — commissioners had ruled that a transgender person cannot be denied access to the restroom designed for the gender with which he or she identifies.

The attorney also said that last year the Legislature spoke on the issue when it defeated a bill that would have forced transgender individuals to use the public bathroom assigned to their biological sex rather than the gender with which they identify.

In a phone interview after the hearing, Gause said the commission had been asked by a school management organization to hold off on providing guidance to schools about dealing with transgender students until after the lawsuit against the Orono district has been concluded.

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