"Another case of the governor not following the law"

Gov. Paul LePage has ordered the Maine Human Rights Commission and state's the Department of Education to cease issuing rules protecting transgender students.

Schools instead are being given guidelines that lack the force of law.

LePage spokeswoman Adrienne Bennett said LePage has read the court decision and believes it requires the Legislature to take action, and that new rules are not required.

I read the decision as well: Doe v. Clenchy

Because section 6501 does not mandate, or even suggest, the manner in which transgender students should be permitted to use sex-separated facilities, each school is left with the responsibility of creating its own policies concerning how these public accommodations are to be used. Those policies must comply with the MHRA.

LePage appears, rather to believe the takeaway from Maine's Superior Judicial Court lies in the two dissenting opinions.

A lead Democrat on the issue says LePage is putting vulnerable teens at risk.

Rep. Matthea Daughtry of Brunswick says the rules are required by the 2013 Maine Supreme Judicial Court's decision in favor of Nicole Maines, a transgender student in Orono who was barred from using a bathroom appropriate for her gender.

Daughtry called this "another case of the governor not following the law."

Following a 2014 Maine Supreme Judicial Court decision that guaranteed the right of a Maine transgender student to use the school bathroom designed for the gender with which she identified, the commission in October 2015 proposed rule changes to guide school administrators on how to abide by the court’s decision.

But Gov. Paul LePage’s administration did not allow the rights commission, working with the Department of Education, to proceed with the rulemaking process, so the commission instead issued guidelines, outlined in a Jan. 13 memo from MHRC counsel Barbara Archer Hirsch.

Students must be permitted to use the toilet, locker room, and shower facilities corresponding to their gender identity. Facilities such as a curtained changing area or unisex facilities may be provided and made available to all students, but should not be used to isolate or segregate students based on their sexual orientation, gender expression, or gender identity. Students shall not be required to use facilities corresponding to their assigned birth sex/gender, where their assigned birth sex/gender and their gender identity are different.

If the educational institution offers housing in which students are separated or assigned by gender, students should be permitted to reside in the housing facilities corresponding to their gender identity.

Rule changes also would have outlined enforcement standards and consequences for not adhering to the law. Guidelines come without consequences.

In the wake of the law court’s decision in the Maines case, I think the question of whether students are entitled to use the bathrooms and facilities of the gender with which they identify — I think that’s pretty clear.

But I think a lot of other things are not clear.

--Amy Sneirson, Human Rights Commission executive director

The governor read the court’s opinion and agreed with Chief Justice Leigh Saufley’s concurrence that the matter requires legislative attention, and that there is no requirement in [the court ruling] that rules be changed.

--Adrienne Bennett

Sauffley wrote a dissenting opinion.

I went and read the entire court case this afternoon. What she’s mentioning is an entirely separate matter than the rulemaking. … There’s nothing in what [Saufley] says that would stop rulemaking.

--Daughtry

I thought it was pretty resounding from the Maines case that we need to move forward and make sure all students have protections, and it’s clear that’s supposed to come from rulemaking. He’s basically holding hostage rules that not only protect our students but give clarity to our schools. … The court case said clearly that students need to have access to a variety of safe spaces. What we need are these rules that provide guidance to schools. … I also think it shows the governor turning his back once again on transgender students.

--Daughtry

In December LePage wrote a letter seeking to block Gavin Grimm's challenge in Federal Court to his school district's blocking of his use of a boys restroom, arguing that he is "biologically of the female sex."

Gov. LePage has nominated Bill Beardsley for education commissioner. He is expected to face tough questioning about a comment he made during a 2010 gubernatorial debate:

On the transgender issue — it seems like — that I feel so badly for little children that are being, you know, kind of decisions being made for them that are outside what we call our normal activities here in the state and imposing those kind of things on a very small child.

--Beardsley

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