News Law and Policy

Maine Court Rules School Officials Discriminated Against Transgender Student

Jessica Mason Pieklo

The decision marks the first time a state court has ruled that students must be allowed to use restrooms of the gender with which they identify. Federal courts have not yet ruled on the issue.

Maine’s highest court ruled last week that school officials violated state anti-discrimination law when they required a transgender fifth-grader to use a staff, rather than a student, restroom. The decision marks the first time a state court has ruled that students must be allowed to use restrooms of the gender with which they identify. Federal courts have not yet ruled on the issue.

The lawsuit, Doe v. Clenchy, arose in 2009 after officials at an Orono, Maine, elementary school denied Nicole Maines, a transgender girl who was in fifth grade at the time, continued use of the girls’ restroom. Officials had previously allowed Maines to use the girls’ restroom until the grandfather of a fifth-grade boy complained to school officials. Following the complaint, the school district determined Maines should use a staff bathroom. Maines, her family, and the state’s Human Rights Commission sued, arguing the action violated Maine’s Human Rights Act, which prohibits discrimination against transgender people.

Last week, the Maine Supreme Court agreed, in a 5-1 decision that reconciled two separate state laws that school officials had argued made it unclear how to comply in situations like Maines’. One law makes it a violation of the state’s Human Rights Act to discriminate in providing access to school bathrooms based on sexual orientation, while another requires schools to provide children with “clean toilets” separated by gender.

According to the court, while school officials are required to provide separate bathrooms for each sex, schools cannot dictate the use of those facilities in a way that discriminates against students in violation of the Maine Human Rights Act. In this case, school officials had worked with Maines and her family, determining she should have access to the girls’ bathroom. In that regard, the school had actually complied with a state anti-discrimination law. But, it was the school’s later decision to ban Maines from the girls’ bathroom that amounted to discrimination on the basis of her sexual orientation, the court found. The school violated the law, the court held, because its decision was in response to complaints by others and not a change in her status as a transgender girl.

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Equality advocates celebrated the historic decision that had been years in the making. “This is a momentous decision that marks a huge breakthrough for transgender young people,” said Jennifer Levi, director of GLAD’s Transgender Rights Project, in a statement. “Schools have a responsibility to create a learning environment that meets and balances the needs of all kids and allows every student to succeed. For transgender students this includes access to all school facilities, programs, and extracurricular activities in a way that is consistent with their gender identity.”

“As parents all we’ve ever wanted is for Nicole and her brother Jonas to get a good education and to be treated just like their classmates, and that didn’t happen for Nicole,” said Wayne Maines, Nicole’s father, in a statement following the decision. “What happened to my daughter was extremely painful for her and our whole family, but we can now close this very difficult chapter in our lives. We are very happy knowing that because of this ruling, no other transgender child in Maine will have to endure what Nicole experienced.”

While the court ruled school officials had discriminated in Maines’ case, it clarified that its decision should be construed carefully. Maines had been diagnosed with gender dysphoria when she was preparing to enter fifth grade, a fact the court noted in clarifying the scope of its ruling:

[W]e do not suggest that any person could demand access to any school facility or program based solely on a self-declaration of gender identity or conclusion with the plans developed in cooperation with the school and the accepted and respected diagnosis that are present in this case.

“Our opinion must not be read to require schools to permit students casual access to any bathroom of their choice,” the court wrote. “Decisions about how to address students’ legitimate gender identity issues are not to be taken lightly.”

News Law and Policy

Texas Court Greenlights Discrimination Against Transgender Students

Jessica Mason Pieklo

The ruling was not a decision on the merits of the Obama administration’s policy, but rather whether it followed the correct procedure in crafting it, U.S. District Judge Reed O’Connor wrote.

A federal judge in Texas on Sunday issued a preliminary injunction barring the Obama administration from enforcing guidelines designed to protect transgender students from discrimination in schools.

The ruling came in the multi-state lawsuitTexas v. United States, challenging the Obama administration’s guidance to schools that receive federal funding that transgender students must be given access to bathrooms that align with their gender identity rather than their biological sex.

Schools that defy the White House’s guidance would face potential loss of funding or federal lawsuits.

The lawsuit brought by Texas and states including Alabama, Georgia, Oklahoma, and Tennessee, targets various federal memos and statements that served as the foundation for the administration’s position that the Title IX of the U.S. Education Amendments of 1972 federal ban on sex discrimination encompasses gender identity discrimination. The administration charges that transgender people should be allowed to use restrooms consistent with their gender identity.

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The administration overstepped its authority in issuing the statement in violation of both the Administrative Procedure Act and the Constitution, according to the states challenging the guidance.

A nearly identical lawsuit challenging the White House’s policy was filed recently by the state of Nebraska. That lawsuit was joined by Arkansas, Kansas, Michigan, Montana, North Dakota, Ohio, South Carolina, South Dakota, and Wyoming.

U.S. District Judge Reed O’Connor wrote that the administration failed to engage in the proper administrative rule making process when directing schools to not discriminate against transgender students in access to restrooms and facilities. The ruling, O’Connor wrote, was not a decision on the merits of the administration’s policy, but rather whether it followed the correct procedure in crafting it.

“This case presents the difficult issue of balancing the protection of students’ rights and that of personal privacy when using school bathrooms, locker rooms, showers, and other intimate facilities, while ensuring that no student is unnecessarily marginalized while attending school,” O’Connor said in his ruling. “The resolution of this difficult policy issue is not, however, the subject of this order.”

Sunday’s ruling comes shortly after the Supreme Court put on hold a federal appeals court ruling ordering a Virginia county school board to allow a transgender student access to the restroom that aligned with his gender identity.

News Law and Policy

Obama Administration Once Again Steps Up for Transgender Rights

Jessica Mason Pieklo

A regulation to be published this week mandates all employees and visitors at federally operated facilities have access to restrooms that align with their gender identity.

The Obama administration this week made another push for advancing transgender rights, announcing a new regulation that requires all people at federally operated facilities, whether an employee or visitor, have access to restrooms consistent with their gender identity.

As reported by Buzzfeed, the regulation, which will be posted this week in the Federal Register, will affect thousands of people and about 9,200 properties operated by the federal government. Those facilities employ roughly 1 million federal civilian workers.

The regulation makes clear that transgender people do not need to complete any medical procedure to qualify to use the restroom that aligns with their gender, nor can transgender people be restricted to single-occupancy restrooms.

This is the latest move by the Obama administration to advance transgender rights in both the workplace and schools. Federal agencies such as the Equal Employment Opportunity Commission and the U.S. Department of Education have issued guidances that state discriminating against transgender people by mandating they use restrooms and facilities that align with their biological sex rather than their gender identity violates federal civil rights laws.

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More than 20 states run by Republican lawmakers have pushed back against the administration’s efforts to protect transgender people from discrimination at work and at school, filing a federal lawsuit arguing the Obama administration has overstepped its authority in issuing the guidance. Those lawsuits argue that legal bans on sex discrimination do not cover transgender rights.

That question—whether existing civil rights laws and their prohibitions on sex discrimination prohibit discrimination against transgender people—could be the next big civil rights case to land before the Supreme Court.

A Virginia county school board adopted a policy that mandates students in their schools use restrooms that align with their biological sex rather than gender identity. Gavin Grimm, a Virginia student, challenged the policy, arguing it violated his civil rights.

Both a federal court and the Fourth Circuit Court of Appeals agreed with Grimm and blocked the school from enforcing the policy. The Roberts Court this month stepped in and ruled the policy should take effect while the Court considers the school board’s request to take Grimm’s case next term. In the meantime, Grimm will start the school year with his school’s policy in place.


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