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Transgender child’s bathroom battle raises a legal case of sex identity

- The Washington Times - Wednesday, June 12, 2013

In what is seen as an important legal test for transgender rights, the Maine Supreme Judicial Court heard a case Wednesday on whether an elementary school discriminated against a boy who identifies as a girl when it required her to use a unisex staff bathroom instead of the girls' bathroom.

The right to use the bathroom that matches one's gender identity is a key part of the transgender policy agenda.

In Wednesday's arguments in Doe v. Clenchy, attorneys debated whether the Asa Adams Elementary School in Orono violated Maine's human rights law in 2007 when it decided to require the fifth-grader to stop using the girls' bathroom and use a single-stall, unisex staff bathroom instead. A male student had been taunting the pupil, who was born a boy but was registered in the school as a girl and is referred to in court papers by female names.

During Wednesday's session, the justices, led by Chief Justice Leigh I. Saufley, covered "safe harbor" policies for schools, the meaning of "sex" and "sexual orientation," whether Maine lawmakers had been clear in their legislation, and whether the case was moot, since the plaintiff family left the school district several years ago.

The case was brought by "Susan Doe" and her family, but they have since publicly identified themselves as Wayne and Kelly Maines and their children.

The Maines children were born as twin boys, Wyatt and Jonas. However, as a preschooler, Wyatt preferred female clothes and toys, and later changed his name to Nicole, according to media interviews and court papers. The Maineses now live in another school district, and Nicole, 15, is preparing to undergo physical sex-change treatment.

In 2007, when Nicole was preparing to enter fifth grade as a girl, the Maineses and school officials worked out plans, including "safe" bathroom options.

She used the girls' bathroom, as planned, for a few weeks, but then a male student started following her into the bathroom, saying that if she could use the girls' bathroom, so could he.

School officials disciplined the boy and took steps to restrict his actions, but he persisted in trying to monitor "Susan's" bathroom habits, according to court papers. Other students expressed puzzlement, asked awkward questions about sex or teased Nicole over the issue.

After this was reported in the local media, the school staff concluded that it would be best for "Susan" to use the staff bathroom because that had been an agreed-upon default plan if any schoolgirls or their families objected to "Susan" using the girls' multi-stall bathroom.

In her arguments for the Maineses on Wednesday, Jennifer Levi, an attorney with Gay and Lesbian Advocates and Defenders, said the school should not have removed "Susan" from the girls' bathroom because "another student misbehaved."

The parents may have agreed to an alternative bathroom plan in theory, but because the school overruled the parents in applying it, the school illegally segregated the child, said Ms. Levi. The Maine Human Rights Act forbids discrimination in public accommodations and in education based on sexual orientation, including gender identity or expression.

Gender identity is a protected class in Maine, and the school should have done more to protect their transgender student, said lawyer John P. Gause, who represented the Maine Human Rights Commission, which is also a plaintiff in the lawsuit. "There is no dispute here that Susan is a girl," and had a right to use the girls' bathroom, Mr. Gause said.

However, David M. Kalin, an attorney for school officials, including Kelly Clenchy, the former school superintendent, said schools are legally required to provide separate bathrooms based only on sex, not gender identity, and that, given the circumstances, the staff turned to the unisex-bathroom plan because it already had been agreed upon. The "default" bathroom was seen as "an answer to the problem," he said.

In court papers and interviews, the Maines said that although they left the school district, now known as Riverside Regional School Unit 26, they decided to pursue the lawsuit — which seeks damages from the school and a court ruling on the merits of the case — after the Maine Human Rights Commission agreed that they had a discrimination case.

In November, Penobscot County Superior Court Justice William R. Anderson ruled against the family.

The school district "acted within the bounds of its authority," did not harass the girl with its actions and was not "deliberately indifferent" to the harassment she was receiving, Justice Anderson wrote.

"The court is not unsympathetic to Susan's plight, or that of her parents," he added. But the 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."

After Wednesday's arguments, Nicole Maines told The Associated Press that she hoped the seven justices can understand "how important it is for students to be able to go to school and get an education and have fun and make friends, and not have to worry about being bullied by students or administration, and be accepted for who they are."

The Maineses were supported in court by the Maine Chapter of the American Academy of Pediatrics; Maine Psychological Association; National Association of Social Workers-Maine Chapter; Trans Youth Equality Foundation; two chapters of the Gay, Lesbian & Straight Education Network; and Maine Women's Lobby.

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