Maine High Court Backs Transgender Student on Restroom Choice

By Mark Walsh — January 30, 2014 3 min read
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Maine’s highest court has ruled that a school district discriminated against a transgender student by barring her from the girls’ restroom in response to community pressure after school officials had earlier agreed it was in her best interest to allow her to use it.

The student identified in court papers as Susan Doe, who was born a boy but began to exhibit a female gender identity at age 2, “was treated differently from other students solely because of her status as a transgender girl,” the Maine Supreme Judicial Court said in its Jan. 30 decision in Doe v. Regional School Unit 26.

The court ruled 6-0 that the Maine Human Rights Act covers discrimination in access to public accommodations based on “sexual orientation,” which the court said covers gender identity, and thus a transgendered person has the right to use the restroom designated for the gender with which he or she identifies. One justice dissented on the issue of whether the school district had discriminated against the student.

Court papers say Susan Doe began to fully identify as female by 3rd grade at her elementary school in Orono, Maine. The choice of restroom wasn’t an issue because students had single-stall facilities available to them during 3rd and 4th grade.

During Susan’s 4th grade year, school officials in Regional School Unit 26 began developing a plan to address her gender identity and her transition to 5th grade, when students begin using larger communal bathrooms separated by gender. (The district called it a Section 504 plan, based on the Rehabiliation Act of 1973, though it acknowledge that was because of the process and not because it considered transgendered status a disability under the federal law.)

As she was entering 5th grade, Susan received a diagnosis of gender dysphoria, or psychological stress resulting from having a gender identity different from the one a child is born with. Susan’s 504 plan encouraged recognition of her identity as a female and it recommended she use the girls’ restroom.

Things started out smoothly in the fall of 2007, but soon there were two incidents in which male students followed Susan into the girls’ restroom, claiming they had the right to enter it, too. At least one of the boys acted on instructions from his grandfather, who objected to how the school was handling Susan’s transgender status.

As a result of the controversy, school officials reversed course and instructed Susan to use a unisex, single-stall staff bathroom. In December 2007, over the objections of Susan’s parents, they decided that that would prevail when the student entered middle school the next year.

The Doe family eventually moved to another part of the state. They filed a complaint with the Maine Human Rights Commission, which sided with them. A state trial court, though, ruled for RSU 26.

The Supreme Judicial Court said this case was its first opportunity to interpret the state’s human-rights law with respect to gender identity in schools.

“Particularly where young children are involved, it can be challenging for a school to strike the appropriate balance between maintaining order and ensuring that a transgender student’s individual rights are respected and protected,” Justice Warren M. Silver wrote for the court.

The court majority rejected the school district’s arguments that the human rights law was in tension with another state law requiring schools to provide sanitary restrooms “separated according to sex.”

The court said the school bathroom law “does not purport to establish guidelines for the use of school bathrooms” and “it certainly offers no guidance concerning how gender identity relates to the use of sex-separated facilities.”

The majority said its decision that the district discriminated against Susan was based significantly on her gender dysphoria diagnosis. “Our opinion must not be read to require schools to permit students casual access to any bathroom of their choice,” the court said.

In his dissent, Justice Andrew M. Mead said the school district was not guilty of discrimination because the state law on school bathrooms calls for segregating school bathrooms by sex in a way that supersedes the state human rights law.

A version of this news article first appeared in The School Law Blog.