December 06, 2019
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Conflict erupts over how Maine should deal with transgender students

BDN File | BDN
BDN File | BDN
Nicole Maines and her father, Wayne Maines, held a lecture talking about dealing with her being transgender and the recent publication of a the book, "Becoming Nicole." Nicole Maines is now a student at the University of Maine in Orono.

AUGUSTA, Maine — The Maine Human Rights Commission last month issued guidelines for public schools to use when dealing with students who identify as transgender.

Following a 2014 Maine Supreme Judicial Court decision that guaranteed the right of a Maine transgender student to use the school bathroom designed for the gender with which she identified, the commission in October 2015 proposed rule changes to guide school administrators on how to abide by the court’s decision.

But Gov. Paul LePage’s administration did not allow the rights commission, working with the Department of Education, to proceed with the rulemaking process, so the commission instead issued guidelines, outlined in a Jan. 13 memo from MHRC counsel Barbara Archer Hirsch.

Rule changes also would have outlined enforcement standards and consequences for not adhering to the law. Guidelines come without consequences.

Rep. Mattie Daughtry, D-Brunswick, who serves on the Legislature’s Education Committee, said Wednesday the administration’s decision was “another case of the governor not following the law.”

But Adrienne Bennett, spokeswoman for LePage, said the governor did not authorize the rulemaking because he is waiting for the Legislature to make Maine law clearer.

In 2005, the Maine Human Rights Act was amended to make discrimination on the basis of sexual orientation, including gender identity and gender expression, unlawful.

In January 2014, the Maine Supreme Judicial Court sided with Nicole Maines, a transgender teen whose family sued the Orono school district for prohibiting her from using girls bathrooms in the district’s schools. The high court’s 5-1 decision overturned a superior court justice’s ruling against the Maines family.

The decision marked the first time any court in the country ruled it unlawful to force a transgender child to use the school bathroom designated for the gender with which he or she does not identify.

The commission’s new guidelines direct schools that offer educational and extracurricular opportunities separately based on gender to allow students to participate in accordance with their gender identity.

Other guidelines direct schools to accept students’ assertions of their gender identity unless there is a “credible, objective reason” to believe it is being asserted for an improper reason; to allow students to compete on single-sex teams based upon their gender identity; and to permit students to use bathrooms and locker rooms, as well as housing, corresponding to their gender identity.

The guidelines stipulate that school records shall bear the student’s legal name unless it is changed in court, but school staff should use the student’s preferred name and pronouns consistent with gender identity on all other documents, and school staff should be required to address the student by that name and pronoun if the student chooses.

According to Hirsch’s Jan. 13 memo, the rights commission delayed any proposed rulemaking until litigation about the Maines case was resolved, even as the commission received inquiries from school administrators and parents about the rights of transgender students.

In October, the commission, working with the Department of Education as required with this unique aspect of the Maine Human Rights Act, proposed rule changes to address those inquiries.

“In the wake of the law court’s decision in the Maines case, I think the question of whether students are entitled to use the bathrooms and facilities of the gender with which they identify — I think that’s pretty clear,” Amy Sneirson, the commission’s executive director, said by phone. “But I think a lot of other things are not clear.”

After commission staff attempted to clarify those matters, the governor’s office blocked that rulemaking process, Sneirson said.

The administration took its cue from the high court, Bennett said.

“The governor read the court’s opinion and agreed with Chief Justice Leigh Saufley’s concurrence that the matter requires legislative attention, and that there is no requirement in [the court ruling] that rules be changed,” Bennett wrote in an email to the Bangor Daily News.

“The judiciary rightly called upon the Legislature (not the executive branch) to address ambiguity in the statute and to make the plain language of the statute clear. It is my understanding that the governor does not believe it is appropriate for the executive branch to update regulations until the Legislature updates the statute, and he communicated that message to the Department of Education. He has also instructed the Department of Education to follow the law.”

But Daughtry said late Wednesday that Bennett’s statement misinterprets the court ruling.

“I went and read the entire court case this afternoon,” Daughtry said. “What she’s mentioning is an entirely separate matter than the rulemaking. … There’s nothing in what [Saufley] says that would stop rulemaking.”

Daughtry said she spent Wednesday afternoon searching for a copy of the proposed rules and trying to determine if the rulemaking could take place without the governor’s signature. She said she would discuss the memo with other members of the Education Committee “and demand that this goes forward.”

“I thought it was pretty resounding from the Maines case that we need to move forward and make sure all students have protections, and it’s clear that’s supposed to come from rulemaking,” Daughtry said. “He’s basically holding hostage rules that not only protect our students but give clarity to our schools. … The court case said clearly that students need to have access to a variety of safe spaces. What we need are these rules that provide guidance to schools. … I also think it shows the governor turning his back once again on transgender students.”

In December, LePage and other conservative governors and attorneys general lent support to an effort in federal court in Virginia to block a transgender boy’s challenge of his school district’s bathroom-use policy, arguing he is “biologically of the female sex.”

Sneirson said she hopes the guidelines explain to schools the commission’s interpretation of the law to help them address specific situations.

“One common question is, ‘What is enough to make a school responsible for liability?’ … if it knows about a hostile environment based on protected class status, whether because a student is gay or perceived to be gay or a student is transgender or perceived to be transgender,” Sneirson said.

The guidelines address more difficult questions such as how school administrators should proceed when a student and the student’s parents disagree about what gender the student identifies as.

Sneirson said that while parents have a right to make decisions for their minor children until the children reach age 18, the school district has an independent obligation to the student.

“While the student is at school, we believe the school has the obligation to use the gender identity the student prefers,” she said.

But she said that without the ability to hold schools accountable — “for them to know explicitly via an enforceable rule what actions we may take” — guidance may not be enough.



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