Judge finds in favor of Orono schools over transgender girl’s use of bathroom

By Judy Harrison, BDN Staff
Posted Nov. 20, 2012, at 3:28 p.m.

BANGOR, Maine — A Superior Court judge on Tuesday r uled in favor of the Orono schools and against the parents of a transgender child who in 2007 was forced to stop using the girls bathroom and told to use a staff bathroom after the grandfather of a male student complained.

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

Justice William Anderson granted summary judgment to Riverside RSU 26, formerly the Orono School District.

“The court is not unsympathetic to [the girl’s] plight, or that of her parents,” Anderson wrote in his 26-page opinion. “It is no doubt a difficult thing to grow up transgender in today’s society. This is a sad truth, which cannot be completely prevented by the law alone. The law casts a broad stroke where one more delicate and refined is needed. Although others mistreated [the girl] because she is transgender, our Maine Human Rights Act only holds a school accountable for deliberate indifference to known, severe and pervasive student-on-student harassment. It does no more.

“In this case, the school acted within the bounds of its authority in prohibiting [the girl] from using the girls’ restroom; it did not itself harass [the girl] by its actions, and it was not deliberately indifferent to the harassment that [she] experienced from others,” the judge concluded.
“The court finds that there is no evidence of deliberate indifference with respect to plaintiff’s claims of education discrimination, and it finds that defendants acted within the law under the public accommodation discrimination claim. Therefore, the court grants summary judgment to [the school district].”

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, the school’s treatment of her and how officials handled bullying by other students. The lawsuit was filed five months after the commission found the school had discriminated against the girl.

Anderson heard oral arguments in the case on Sept. 3 at the Penobscot Judicial Center.

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 15. In court documents and in Anderson’s decision, family members were not named but referred to as the Does, with Nicole Maines being called “Susan Doe.”

The family’s attorney, Bennett Klein of Gay and Lesbian Advocates and Defenders in Boston, said Tuesday that Anderson’s decision would be appealed to the Maine Supreme Judicial Court. He said that family members would not be speaking to the media about the case.

“This case involves a fifth-grade girl who was made an outcast by the school and subjected to severe bullying,” Klein said in a telephone interview. “We think the judge was wrong on the law and ignored critical facts. From the very beginning we always knew that this case would ultimately be decided by Maine’s highest court.

“I think [Anderson] has carved a huge hole in legal protections established by the Legislature that makes if very difficult for a transgender girl to get an education,” the attorney continued. “That is not what was intended when the Legislature passed the gender identity nondiscrimination law. The school acknowledged that a transgender girl needs to be able to live as a girl in order to get an education. We are going to pursue this case on an appeal because the need to get an education in today’s world is critical to every student in Maine.”

The Maines family now lives in southern Maine, where the children attend a private school. Wayne Maines, who has acted as a spokesman for the family, made a statement on the family’s behalf Wednesday in a telephone interview.

“At this point we’re disappointed, but we’re hopeful for our appeal,” he said. “Our daughter just wanted to go to school and be with her girlfriends and get a good education. Instead, she was an outcast. She was bullied and harassed. No parents want that for their daughter.”

He said that Nicole is excelling in her current school environment.

“All it takes is good leadership,” Wayne Maines said. “She’s acting and involved in the performing arts. She got an A in Chemistry. I’m pretty proud she got an A in Chemistry. It doesn’t have to be that hard.”

John Gause, counsel for the Maine Human Rights Commission, also disagreed with Anderson’s decision. The commission was a party to the bathroom access claim and not the harassment claims.

“The MHRA explicitly prohibits segregating students because of gender identity, which is what happened here — the student was assigned to a separate bathroom from her peers because she is transgender,” Gause said Tuesday in an email.

Melissa Hewey, the Portland attorney who represented Clenchy and the district, praised Anderson’s decision and pointed out a footnote in which the judge recognized the difficulties teachers and administrators face.

“The judge was able to recognize the particular challenges faced by school personnel, who must ‘engage in the delicate process of engaging the adolescent mind to effectuate change,’ which, he said, ‘requires the application of complex and ever developing psychological principles,’” Hewey said in an email, quoting Anderson. “For my clients, this recognition of the difficulty of the challenges they face is particularly gratifying.

“What the school department is most pleased about, however, is that for the second time — first before the Human Rights Commission and now before the court — the efforts by the dedicated teachers and administrators in Orono to work with the family and help this child thrive have been vindicated with the summary dismissal of the harassment claims,” Hewey said.

http://bangordailynews.com/2012/11/20/news/bangor/judge-finds-in-favor-of-orono-schools-over-transgender-girls-use-of-bathroom/ printed on July 13, 2014