Nicole Maines

By Matt Wood, Staff Attorney

Like many New England states, Maine has taken a strong stance in favor of LGBT rights. Since 2005, state law has prohibited discrimination based upon gender identity, and in 2009 Maine recognized same-sex marriage. Last week, while all eyes were on the U.S. Supreme Court for two important decisions concerning the rights of lesbian and gay couples, Maine’s highest court heard a case of great significance for transgender people both inside and outside the state of Maine.

Brought by the Transgender Rights Project of Gay and Lesbian Advocates and Defenders (GLAD), the case, Doe vs. Clenchy, concerns a transgender girl’s right to use the girls’ restroom at her public school. The youth, Nicole Maines, began using the girls’ restroom in third grade with her parents’ and elementary school’s approval. By the time Nicole reached fifth grade, however, a male classmate started harassing and bullying Nicole, and even went into the girls’ restroom himself to make a “statement,” at the encouragement of his guardian. Despite Maine’s human rights law prohibiting discrimination based upon gender identity, the school bowed to objections by the male student’s guardian and forced Nicole to use a gender-neutral staff restroom instead.

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In May 2011 GLAD filed a complaint in Penobscot Superior Court outlining several counts of discrimination and harassment. In November 2012 the trial court judge granted summary judgment for the school – essentially saying that denying Nicole access to the girls’ restroom did not violate the state’s gender identity nondiscrimination law. The Court based its decision on the premise that sex-segregated restrooms are lawful, and that while Nicole’s gender identity is female, her “sex” is male. It also held that the school did not violate Nicole’s rights when it failed to protect her from the harassing student who went into the girl’s restroom and repeatedly bullied her. GLAD appealed that decision to the Maine Supreme Judicial Court. Last week, GLAD attorney Jennifer Levi argued before the Supreme Judicial Court that the Maine’s Human Rights Act had been violated when Nicole was denied restroom access and a safe environment in which to learn.

Much is at stake in Maine – for Nicole and her family of course, and also for transgender Mainers. But the case also resonates for transgender people throughout the nation, both youth and adults, whose dignity and safety are put at risk every time they are forced to use restrooms associated with their birth gender rather than with their gender identity. Though 15 states and the District of Columbia protect transgender people from discrimination in public accommodations like restrooms, few nondiscrimination laws include explicit language about restroom and locker room access – leaving transgender people vulnerable to policies that deny restroom access unless a person has had a particular surgery, or that rest on irrelevant distinctions between “sex” and “gender,” as the judge in Nicole’s case did.

Just last year, the U.S. Equal Employment Opportunity Commission (EEOC) rejected such a distinction in Macy v. Holder, an employment discrimination case brought by Transgender Law Center. The EEOC held that intentional discrimination because of transgender status is per se a type of sex discrimination. The U.S. Department of Education said the same thing in October 2010 when its Office for Civil Rights issued a “Dear Colleague” letter stating that bullying and discrimination based upon gender nonconformity were prohibited by Title IX, the federal statute prohibiting sex discrimination in public education. And it is plainly discriminatory to treat transgender girls different from all other girls, or transgender boys different from all other boys. But when it comes to bathrooms, the logic of the law has sometimes been trumped by irrationality. For instance, although Minnesota also has a transgender nondiscrimination law, a court there held in 2001 that an employer had not discriminated against a transgender woman when it refused her access to the women’s restroom.

As a result, and just to make it absolutely clear that such discrimination will not happen in California public schools, California Assemblymember Tom Ammiano introduced the School Success and Opportunity Act (AB 1266), which is co-sponsored by Transgender Law Center, Equality California, Gender Spectrum, GSA Network, and the National Center for Lesbian Rights. The legislation will ensure that transgender students will not be unfairly excluded from physical education classes, athletic teams, and other school activities and facilities – including locker rooms and restrooms. The bill is based on the simple idea that all students deserve equal educational opportunities and a safe place to learn.

A decision in Nicole’s case is not expected for several months, and given the strong nondiscrimination laws and GLAD’s tireless advocacy on Nicole’s behalf, we have every hope that Maine’s Supreme Judicial Court will do the right thing and reverse the trial court’s decision. There’s also every reason to hope that the California Legislature will pass and the Governor will sign into law AB 1266. Until this is done, and until Nicole is victorious, transgender people will be reminded of our second-class status every time we are forced to use facilities that don’t match who we are, undermining our safety and our humanity.