- The Washington Times - Thursday, January 30, 2014

A Maine transgender student can use the bathroom of her choice and can’t be forced to use the unisex facility recommended by school officials, the Maine Supreme Judicial Court ruled Thursday, in a case being closely watched by gay rights groups and school districts around the country.

But the justices in their 5-1 ruling said their opinion “must not be read” as mandating that schools permit students “casual access to any bathroom of their choice.”

Despite the caveats, gay rights activists immediately praised the ruling as a “breakthrough” for transgender rights.


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The decision marks the first time a state court has ruled that transgender students must be allowed to use the bathrooms that match who they are, said Gay & Lesbian Advocates & Defenders, whose attorney Jennifer Levi argued for the girl’s family in the case in June.

The high court found that asking the transgender student — known in court papers as Susan Doe, but subsequently identified as Nicole Maines — to use a unisex bathroom was discriminatory.

The Maine Human Rights Act prohibits discrimination based on sexual orientation in public accommodations, educational opportunities, employment, housing and other areas, Justice Warren M. Silver wrote for the majority.

Those rights trump Regional School Unit 26’s argument that it was adhering to state law on “sanitary” bathrooms that are “separated according to sex.”

“Although school buildings must … contain separate bathrooms for each sex,” the court explained, the law “does not — and school officials cannot — dictate the use of the bathrooms in a way that discriminates against students in violation” of the Maine Human Rights Act.

The ruling prompted two justices to call for swift action by lawmakers to update their laws, since Thursday’s ruling means that in any public facility, men can assert a right to use women’s bathrooms and vice versa.

Dissenting Justice Andrew M. Mead said that the way the majority construed the Maine Human Rights Act, it “prevents the denial of access to any public bathroom on the basis of a person’s sex.”

The result is that the human rights law is now on “a collision course” with the well-established social practice that men and women use separate bathrooms, he wrote.

Chief Justice Leigh I. Saufley, who joined the majority, said in a separate concurring opinion that lawmakers should step in.

“Put simply, it could now be argued that it would be illegal discrimination for a restaurant, for example, to prevent a man from using the woman’s communal bathroom, and vice versa,” Justice Saufley wrote in her concurrence.

Because the school district agreed with Ms. Maines, her family and counselors that she is a girl, school officials erred when they then asked her to use a staff members’ unisex bathroom instead of the communal girls’ bathroom.

Wayne Maines, Nicole’s father, said his family was “very happy knowing that because of this ruling, no other transgender child in Maine will have to endure what Nicole experienced.”

According to court papers, Ms. Maines originally attended Orono, Maine, public schools as a boy, but by the third grade was presented to the school principal as a girl. She started dressing and appearing exclusively as a girl in fourth grade, and later received a diagnosis of “gender dysphoria,” a condition in which an individual feels discontent with their gender.

In the early grades, all students used single-stall bathrooms. When Ms. Maines advanced to grades using communal bathrooms, she initially used the girls’ bathroom, with a single-stall, unisex, staff bathroom available as a backup, court papers said.

But in the fifth grade, a male student began to follow her into the girls’ bathroom, saying he could use it too. As the result of two incidents involving the boy — and ensuing publicity — school officials, “over the [Maineses’] objections, terminated [Ms. Maines’] use of the girls’ bathroom” and required her to use the staff bathroom.

Thursday’s ruling overturns a lower-court ruling that favored the school district. An attorney for the school said it would comply with the human rights act.