High court to hear arguments in transgender bathroom case Wednesday

Nicole Maines, 14, her mother Kelly Maines and her twin brother Jonas listen to Wayne Maines, right, as he delivers a stirring speech about their experience in helping Nicole seek justice and acceptance as a transgender youth. The family appeared at at the 2011 ACLU of Maine's Annual Meeting and Celebration at the University of Maine in Orono Thursday evening, Oct. 27, 2011.
John Clarke Russ
Nicole Maines, 14, her mother Kelly Maines and her twin brother Jonas listen to Wayne Maines, right, as he delivers a stirring speech about their experience in helping Nicole seek justice and acceptance as a transgender youth. The family appeared at at the 2011 ACLU of Maine's Annual Meeting and Celebration at the University of Maine in Orono Thursday evening, Oct. 27, 2011.
Posted June 08, 2013, at 1:18 p.m.
Last modified June 09, 2013, at 3:58 p.m.

BANGOR, Maine — The Maine Supreme Judicial Court on Wednesday will consider the appeal of a transgender girl and her family, who sued Orono school officials over her access to the girls bathroom.

Justices will convene Tuesday and Wednesday in Bangor to hear oral arguments in a dozen cases, including the one known as Doe v. Clenchy.

The incident that sparked the court case began in 2007 when a child, who was born male but identifies as female, was forced to stop using the girls bathroom at the Asa Adams Elementary School in Orono. She was told to use a staff bathroom after the grandfather of a male student complained.

The girl’s parents and the Maine Human Rights Commission sued the Orono School District, now called Riverside RSU 26, and then Superintendent Kelly Clenchy after the commission ruled in the girl ’s favor.

Both sides have appealed the November decision of a Superior Court judge to the Maine supreme court. Justice William Anderson’s decision sided with the school district over the girl’s use of the student bathroom.

The family and their child are not identified in the lawsuit and 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 Anderson’s decision, family members were referred to as the Does, with Nicole Maines being called “Susan Doe.” All the briefs filed in the appeal do the same.

The questions the court has been asked to decide by the Does include:

— Does the exclusion of a transgender girl from a school’s communal girls’ restroom violate the Maine Human Rights Act because it prohibits a school from treating a transgender girl differently from all other girls?

— Does a school engage in unlawful segregation in violation of the MHRA when it denies a transgender girl access to the communal-use restroom and forces her to use a staff restroom?

The Does also are asking the court to decide which section of the MHRA prevails in Susan Doe’s situation — the provisions concerning gender identity or those regarding sex-designated restrooms in schools.

The school has acknowledged that it was not possible for the girl to use the boys bathroom, according to the brief filed by Bennett H. Klein, the Boston attorney for Gay & Lesbian Advocates & Defenders who represents the Doe family.

“When the school excluded Susan from the girls’ restroom, they understood the impossibility of her using the only other bathroom available to other students,” he wrote. “This is certainly direct segregation, but at the very least must qualify as [the] indirect segregation that the Legislature intended to outlaw.”

Melissa Hewey, the Portland attorney that represents the school district, said in her brief that “in enacting the MHRA the Legislature imposed specific requirements for accommodations only to persons with disabilities. There is no similar requirement with respect to sexual orientation discrimination.”

The attorney also said that while the MHRC has adopted regulations requiring accommodation on the basis of gender identity in employment, it has not done the same in connection with education or public accommodation.

“In short, the language of the MHRA, the requirements of the statute, the MHRC’s own regulations, and persuasive case law all compel the conclusion that a school’s segregation of bathrooms on the basis of sex rather than gender identity does not constitute illegal discrimination under the Maine Human Rights Act,” Hewey said in her brief.

John Gause, the attorney for the MHRC, also filed a brief in the case.
“In the case of sex discrimination, the prejudices and stereotypes that the MHRA is concerned with are directed at women based on their status as women, which is usually determined by identity and perception, not biology,” he said. “A company that refused to hire a woman as its president because she is female does not check her chromosomes first.

“In the context of bathrooms, the meaning of the term ‘sex’ should be no different,” he continued. “Women and men of the same gender share a common identity. The reasons for separating bathrooms evaporate in light of that commonality.”

A “friend of the court brief” has been filed in the case by the following organizations: Maine Chapter of the American Academy of Pediatrics, Maine Psychological Association, the National Association of Social Workers-Maine Chapter, Trans Youth Equality Foundation, the Maine Women’s Lobby and the Downeast and Southern Maine chapters of the Gay, Lesbian & Straight Education Network.

The is no timeline under which the justices must issue a decision.

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