Maine Supreme Court: Transgender students must have full access toschool facilities

 photo NicoleMaines_zpscd10d3e5.jpgThe Maine Supreme Judicial Court has finally ruled in the case of Doe v Clenchy (pdf). The ruling was that denying Nicole Maines (aka Susan Doe) the use of the girls' restroom of her school violated her rights under Maine's Human Rights Act, which prohibits discrimination on the bases of sexual orientation and gender identity. The ruling was the first time that any state court has ruled that transgender students must be allowed to use the restrooms that match their gender.

[The school] agreed with Susan’s family and counselors that, for this purpose (as for virtually all others), Susan is a girl.  Based upon its determination that Susan is a girl, and in keeping with the information provided to the school by Susan’s family, her therapists, and experts in the field of transgender children, the school determined that Susan should use the girls’ bathroom.

This is a momentous decision that marks a huge breakthrough for transgender young people. 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.

--Jennifer Levi, director GLAD Transgender Rights Project

Ms. Levi argued the case before the Maine Law Court on June 12.

Because the 5-1 ruling was based on state law, the Supreme Judicial Court has the final word on the matter; from now on, all trans* students in Maine must be permitted to use the bathroom of their choice.

The victory comes on the heels of a similar success in California, where the state legislature recently passed a transgender students rights law designed to let trans* students use the bathroom of their preferred gender. During debate over the bill, representatives spoke eloquently about the challenges young trans* kids face on a daily basis, the fraught confrontations and bullying that can turn a regular school day into a living hell. The act easily passed the overwhelmingly Democratic legislature, though it may now face a statewide referendum in November.

What we’re seeing in California and Maine—as well as Massachusetts, which also grants school bathroom protections—is the possible birth of a winning issue for the trans* movement. When most Americans think of trans* people, they become fascinated by, even fixated on, questions about their genitalia. This preoccupation occludes their perception of trans* people as actual humans, and allows conservatives to hijack their humane impulses with panicked screams of perversion. But kids are different. It’s hard to look at Nicole Maines and see anything other than a normal (if very poised and eloquent) fifth-grader who wants nothing more than the ability to use her school’s bathroom in peace. Her opponents, meanwhile, come across as mean-spirited bullies, inexplicably dedicated to ruining her childhood.

--Mark Joseph Stern, Slate

A transgender girl is a girl and must be treated as such in all respects, including using the girls’ restroom. This ruling is consistent with what educators and human rights commissions – including the Maine Human Rights Commission -- around the country have concluded.

--Bennett Klein, co-counsel

Lewiston's Jodi Nofsinger of Berman and Simmons, P. A. also represented Nicole.

The case stems from a time when Maines, now 16, was in 5th grade and an Orono elementary school denied her use of the girls' restroom…after she had previously been allowed its use. The denial was the result of the behavior of one male student, who was told by his grandfather to follow Nicole into the girl's facility.

I wouldn’t wish my experience on another trans person.

--Nicole Maines

We are very grateful and relieved that the Court said our daughter should not be singled out for different treatment at school simply because she is transgender. 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. 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.

--Wayne Maines, Nicole's father

Nicole has identified as a girl since the age of 2. Many of our opponents claim that two years old is too early to know that sort of thing, but actually, according to Kohlberg's analysis of gender development established that as precisely the age at which gender gets solidified.

Decisions about how to address students’ legitimate gender identity issues are not to be taken lightly.

Where, as here, it has been clearly established that a student's psychological well-being and educational success depend upon being permitted to use the communal bathroom consistent with her gender identity.

Our opinion must not be read to require schools to permit students casual access to any bathroom of their choice.

--Justice Warren Silver

That last sentence addresses the "concerns" always expressed by the rightwing haters when this issue comes up: non-transgender boys will take advantage to get into the girls' locker rooms by claiming to be transgender.

Won't happen. Can't happen.

We think it was very important in this case that the court emphasize the principle that we have in law, that the discomfort of other people cannot trump the law.

All of those teachers and guidance counselors understood that the only way a transgender girl could go to school (was) if she was treated as a girl. It was the school administrators who came in when one student tried to disrupt Nicole’s use of the girls’ restroom.

--Ben Klein

It sends a message to my kids that you can believe in the system and that it can work. I'm just going to hug my kids and enjoy the moment, and do some healing.

--Wayne Maines

At the core of that decision is a recognition that tolerance is important.

--Melissa Hewey, lawyer for the school district

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A selection from my one-woman show, Ain't I a Human?:

Robyn's picture

Kohlberg argued that the major developmental task facing children is coming to understand that gender is constant and cannot be changed regardless of surface features. Based on extensive interviews with young children, he posited that children develop through three stages in coming to understand gender. At the very beginning, children do not use gender to categorize themselves or others at all...essentially, they do not have any understanding that gender is an unchanging characteristic of an individual. 

At about 2 years of age, children enter stage 1, called gender identity. Children are now able to label themselves and others consistently as female or male, but they base this categorization on physical [???-Ed] characteristics [length of hair, attire, etc-Ed]. If these superficial physical characteristics change, then gender changes as well. At about 3 to 4 years, children move into stage 2, called gender stability. They now understand that if one is a female or male at the present time, then one was a female or male earlier in life and will remain a female or male later in life. Little girls will grow up to be mommys and not daddys and little boys will grow up to be daddys and not mommys. Thus stage 2 children understand that gender is stable across time. However, they do not yet understand that gender is stable across situations. If a male engages in female-typed activities, such as doll play, stage 2 children believe the male might change into a female. It is only at about age 5 when children progress to stage 3, called gender constancy, that they understand that gender is constant across time and situations. Now children claim that gender will not change regardless of the clothes worn or the activities engaged in. They have come to understand that gender is an underlying, unchanging aspect of an identity.

Research has confirmed that children do indeed progress through Kohlberg's three stages of understanding the concept of gender...

--Gender Development, by Susan Golombok and Robyn Fyvush (1994)


An important word was omitted in that last sentence. It should have read,

Research has confirmed that MOST children do indeed progress through Kohlberg's three stages of understanding the concept of gender...

"Most" is not "all."

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