Law Court Ruling Assuring Transgender Individuals Access to Facilities Victory for All Mainers

Law Court Ruling Assuring Transgender (pic)I wish Paul Melanson could have met my father.  You see, Paul Melanson was the Mainer who sent his grandson into the girls’ bathroom not just once but twice to protest the use of those school facilities by Nicole Maines, a transgender student.  Why my dad?  Because as embarrassing as it was to my family, my dad liked to talk to strangers—virtually anyone. Maybe, just maybe, if Paul Melanson had met my dad, he would have learned the lesson my father taught us–to embrace, not reject, the unfamiliar, and to live and let live. 

Last week, in a case that made national headlines, Maine’s Law Court did the right thing.  Maine’s highest court rejected—almost unanimously—a lower court decision that had held that (despite clear language in the Maine Human Rights Act to the contrary), transgender students were not entitled to use the bathroom consistent with their gender identity.  Once again manifesting our state motto, Dirigo, Maine became the first state in the country to hold that transgender students have the right to use the bathroom of the gender they identify with, not the bathroom that corresponds with the sex they were assigned at birth. 

Although the concurrence of Chief Justice Saufley expressed concern that the decision could be read to permit students free rein to use the bathroom of the opposite sex, and thus called for immediate legislative action to clarify the statute, I do not read the majority decision so broadly.  Rather, use of bathrooms of the opposite sex from that assigned at birth is only permitted when there is a clear indication that one’s gender expression does not match one’s assigned sex. 

In Nicole Maines’ case (referred to in the decision as Susan), she and her parents became aware by the time she entered third grade that although born male, Susan was a girl trapped inside boy’s body.  By fourth grade, Susan regularly was dressing as a girl, and the school and parents jointly implemented a program to address Susan’s transition to a girl.  The program included, among other things, referring to Susan by her female name and having her use the girls’ bathroom. 

Everything went according to plan until Paul Melanson got his knickers in a twist.  Using his grandson, over whom he had custody, as a pawn, he directed the boy, who had no gender identity issues, to use the girls’ bathroom on two occasions.  Quite properly, the school threw the boy out and told him to mind his own business.  Not satisfied, Melanson incredibly went so far as to have his grandson file—unsuccessfully—his own charge of discrimination with the MHRC!

But by this point Melanson had won the battle if not the war.  Wary of controversy, the school cast aside its carefully crafted plan, changed course, and instructed Susan to use the staff bathroom.  Susan’s family in turn sued, joined by the Maine Human Rights Commission. 

Finding in Susan’s favor, the Law Court not only noted the valiant efforts of the school to deal with a difficult issue, but (as most conservatives should like) refused to engage in judicial activism. Rather, the Law Court read the words of the statute precisely as written:

Particularly where young children are involved, it can be challenging for a school to strike the appropriate balance between maintaining order and ensuring that  transgender student’s individual rights are respected and protected.  Many of the school officials involved in Susan’s education exhibited tremendous sensitivity and insight over several years.  The record reveals that her counselors and teachers strove to provide her with a supportive environment and were largely successful.  As a result of its efforts, the school came under intense public scrutiny, which caused it to reconsider the propriety of the steps it had taken up to that point and ultimately to reverse course.  We appreciate the difficulty of the situation in which the school found itself, nevertheless, we must assess schools’ obligations pursuant to the Legislature’s amendments to the MHRA without regard to the public’s potential discomfort with the result.  It is for the Legislature, not this Court, to write laws establishing public policy…

So what now?  The good news is that when Susan’s classmates learned of the decision, they cheered.  And Susan’s father was a modern day profile in courage; rather than gloat or condemn the Melanson family, he emphasized the importance of educating the public about transgender issues

Unfortunately my dad passed away some five years ago.  But not a day goes by where I don’t have occasion in my work to recall the lessons of tolerance he taught me.  Somewhere Dad—and the gods—are smiling.    

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