July 22, 2018
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Civil rights laws, not personal agenda, should guide transgender rules

BDN File | BDN
BDN File | BDN
Nicole Maines (from left), 14, her mother Kelly Maines and her twin brother Jonas listen to Wayne Maines as he delivers a stirring speech about their experience in helping Nicole seek justice and acceptance as a transgender youth.
By The BDN Editorial Board

Transgender youth are at high risk for suicide, bullying and physical attacks. They are the target of proposed law changes across the country to limit their rights and penalize them.

In 2014, the Maine Supreme Judicial Court sent the important message that anti-discrimination laws apply to transgender students, specifically related to their school bathroom use. After the court decision, the Maine Human Rights Commission was doing the important work of translating it into rules for schools. Gov. Paul LePage’s administration, however, has stopped this rulemaking.

By delaying rules for schools, which are asking for clarity in how they should accommodate transgender students, the LePage administration needlessly puts these vulnerable students at risk.

The suicide risk for transgender people is nearly 10 times that of the general population. More than 40 percent of transgender individuals have attempted suicide, according to the National Transgender Discrimination Survey. Nearly three-quarters of LGBT youth report being verbally harassed, and a third report having been physically harassed because of their sexual orientation or gender identity, according to a 2013 survey by the Gay, Lesbian & Straight Education Network. More than a third of these students avoid gender-segregated spaces in schools, such as bathrooms and locker rooms.

That is why rules from the Human Rights Commission are needed. Because of the governor’s opposition to its work, the commission has simply sent schools guidelines, rather than rules that carry the force of law.

Over a year ago, the Maine Supreme Judicial Court ruled that state law requires schools and other public venues to allow transgender individuals to use bathrooms that match their gender identification. To prohibit a transgender girl from using a girl’s bathroom in school violates the Maine Human Right Act, the court ruled.

The commission, which has been working on transgender policy for schools for more than a decade, put that work on hold pending the outcome of a lawsuit involving a transgender student in Orono. After the January 2014 ruling, the commission resumed its work, along with the Department of Education, to answer the numerous inquiries it received from schools about how to accommodate transgender students.

The LePage administration stopped that rulemaking, arguing that the Legislature must first rewrite state law.

The administration bases this argument on a concurring opinion written by Chief Justice Leigh Saufley. She agreed with the majority’s decision that prohibiting a student from using the bathroom that matches his or her gender identity is unlawful discrimination. But Saufley wrote her own opinion to draw attention to a problem identified by Justice Andrew Mead, who dissented from the majority opinion. He warned that the court’s opinion could bar public facilities from prohibiting men from using women’s bathrooms and vice versa. This, he writes, is not what the court intends, but a strict reading of state laws would lead to this outcome. To remedy this, he and Saufley suggest the Legislature clarify the language. Mead reiterated numerous times that “the right of transgendered individuals to access public accommodations that consistent with their gender identity must be protected.”

While LePage uses Saufley’s opinion as an excuse, his decision to halt rulemaking that would protect transgender students aligns with his longstanding reluctance to recognize the rights of transgender students.

Last year, LePage signed on to a brief in a Virginia case, arguing that a transgender boy should not be allowed to use the boy’s bathroom at his school. The governor said he was “appalled” at the boy’s “lack of parenting.” In 2010, when he was campaigning for governor, LePage told an Aroostook County radio show he didn’t understand “how people, at least sane people, would want to allow transgender in our primary schools and our high schools.” His education commissioner nominee, Bill Beardsley, made similar comments that year.

The situation envisioned by Mead hasn’t come to pass and is tangential to the central issue of protecting the civil rights of transgender students. So this argument shouldn’t stand in the way of the state setting clear standards for schools, which want and need them.


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