Work by Matthew Stone

Jan. 24, 2010

Nearly five years ago, Maine's anti-discrimination laws expanded to cover discrimination based on sexual orientation.

Now, the agency charged with enforcing those laws is preparing new guidance for public schools on preventing discrimination against gay, lesbian, bisexual and transgender students and staff.

This effort is an outgrowth of a 2007 case in Orono, in which the school department denied a transgender student access to the girls' bathroom. The commission heard the case in June 2009 and ruled the school department had discriminated against the student.

The commission's guidance will help schools and colleges identify unlawful discrimination and harassment based on sexual orientation, and provide guidance on proper accommodations for transgender students.

While this process is similar to guidance the commission developed for workplaces two years ago, Maine is one of the first states to address the issue in educational settings.

Commissioners will review the guidance for schools and colleges at a March 1 meeting, according to their counsel, John Gause.

The guidance -- which represents the commission's interpretation of the Maine Human Rights Act -- is not legally binding, Gause said.

"The coverage in this area is fairly new and untested," he said. "We're issuing the guidance and hopefully the guidance will educate everybody about what the commission feels their rights and responsibilities are."

'Consistent with identity'

Commission staff started work on the document after the Orono case, in which a transgender fifth-grader -- born a boy -- was denied use of the girls' bathroom after a male student followed her into the rest room.

The male student, according to court documents, was prompted to do so by his step-grandfather, who was working in conjunction with the Christian Civic League of Maine, a socially conservative advocacy group.

The commission found the Orono School Department discriminated against the transgender student, who had long identified herself as a girl and dressed in female clothing, by denying her access to the girls' bathroom.

A lawsuit is now pending in Penobscot County Superior Court against the Orono schools, brought by the commission and the transgender student's parents.

A draft of the guidance obtained by the Kennebec Journal affirms that, in schools, transgender students should have access to bathrooms that are consistent with the gender with which they identify.

For example, if a student born a boy has consistently identified as a girl, she should have access to the girls' bathroom, according to the Maine Human Rights Commission.

"The guidance is going to have the same effect as the commission's view, and the commission has already decided the issue of transgender access in schools," Gause said. "Transgender students should have access to a bathroom that is consistent with their gender identity."

The draft guidance also says transgender students should have access to athletic locker rooms consistent with their gender identities, and they should -- with a few exceptions -- be able to join sports teams that align with their identities.

The same access applies to any academic program or facility, according to the draft guidance, which still could be amended before it's approved.

"If you feel that's who you are, most schools have actually had a pretty easy time accommodating those kids," said Mary Bonauto, the civil rights project director at Gay and Lesbian Advocates and Defenders, a New England advocacy group.

Public process?

The guidance is being developed under an internal Maine Human Rights Commission process that doesn't call for public hearings or use formal rulemaking procedures.

While they haven't asked for public input, commission staff have consulted with several organizations interested in the guidance's outcome.

Staff members, for example, invited representatives of Maine school principals and superintendents, school and college athletic directors, the state Department of Education, the Attorney General's office, civil rights advocates and others to a Dec. 15, 2009, meeting about the guidance.

"In the school context, where they haven't had regulations, it was incumbent upon (the commission) to help schools understand what the law requires," said Bonauto, who attended the meeting.

Bonauto said the commission guidance is a "good first start, but it's clearly not the end of the road."

"I think it was important that the commission stepped up and remind people that discrimination on sexual orientation is not permissible."

But others have called on the commission to use a more public process in developing the guidelines for schools.

"Regardless of where you come down on it, it's a substantial policy issue," said Bruce Smith, a lawyer for the Maine School Management Association, which represents superintendents and school boards. "Open this up to the people who have their boots on the ground in schools, and think this through before you jump ahead and issue guidance for which you have not solicited a full range of views."

Smith's firm, Drummond Woodsum, is also representing Orono in the transgender student discrimination case.

Gause, the commission counsel, said the guidance for schools is a first step toward formal rules on par with regulations that outline how employers can avoid discrimination based on sexual orientation.

"What the commission is doing by seeking input from organizations on all sides ... is to better understand the issue and the implications of its interpretation," he said.

The formal rulemaking process, he noted, would include public hearings and be open to input from the general public.

"This is not that process," Gause said of developing guidance. "It's a relatively informal process."