Maine court dismisses transgender student’s discrimination suit for schools’ refusal to allow use of girls’ restroom
Doe v. Clenchy, No. 09-201 (Me. Nov. 20, 2012)
Abstract: The Penobscot County Superior Court has ruled that Riverside RSU 26, formerly Orono School District (OSD), did not violate a transgender (male-to-female) student’s rights under the Maine Human Rights Act (MHRA) when school officials prohibited the student from using the girls’ restroom at school. It also rejected the student’s claims of discrimination under the MHRA based on deliberate indifference to student-on-student harassment or harassment by school officials.
The court concluded that there was no evidence of deliberate indifference in regard to the student’s claims of education discrimination. It also found school officials acted within the law under the claim of discrimination in public accommodations. Lastly, it found no harassment related to the school’s use of “eyes on” practices, a practice to which the parents consented.
Facts/Issues: “Susan”, a transgender student who is a biological male but identifies as female, was allowed access and use of the girls’ bathroom at Asa Adams Elementary School (AAES) beginning in third grade, without incident. However, during Susan’s fifth grade year, after a male student (under his grandfather’s direction) followed her into the girls’ bathroom and after the grandfather also contacted the local news media who began reporting the story, OSD Superintendent Kelly Clenchy terminated Susan’s use of the bathroom. AAES officials then allowed her to use the staff bathroom.
When Susan moved to middle school, OSD continued to impose the ban on use of the girls’ restroom while still allowing her to use the staff bathroom. Because of an incident that occurred at a public pool over the summer, the middle school, with the parents’ consent, provided an “eyes on” staff person to monitor Susan during transition times in the school day. During sixth grade, a number of peer bullying incidents occurred, including some that involved the male student from AAES. After the school year ended, Susan’s parents moved to another school district.
In late 2009, Susan’s parents filed suit against OSD, now RSU 26, in Superior Court initially alleging unlawful discrimination in education on the basis of sexual orientation, unlawful discrimination in public accommodations on the basis of sexual orientation, and the state claim of intentional infliction of emotional distress. The defendants filed a motion to dismiss all three original counts.
In April 2011, the Superior Court granted the defendants’ motion as to the “unlawful discrimination in education” allegation, granted in part and denied in part the “unlawful discrimination in public accommodations” allegation, and denied the state tort claim. The Superior Court ruled that OSD was not obligated under the MHRA to accommodate Susan specifically by allowing access and use of the girls’ bathroom at school. The court concluded that neither the language of the MHRA, the language of the Maine Human Rights Commission’s (MHRC) internal regulations, nor the case law interpreting the state’s Civil Rights Act required that type of accommodation. The court held in that decision that to the extent the student’s claim is “intended to include a claim that the Defendants were under an affirmative duty to accommodate her transgender status by permitting her access and use of the girls’ bathroom at Asa Adams Elementary, that claim does not withstand analysis.”
In May 2011, an amended complaint was filed, in response to which the parties filed rival motions for summary judgment. The amended complaint contained five allegations: (1) discrimination in education, (2) discrimination in public accommodations, (3) a state claim for intentional infliction of emotional distress, (4) discrimination in education based on harassment and the “eyes on” policy, and (5) discrimination in public accommodations based on harassment and the “eyes on” policy. By stipulation of the parties, the emotional distress claim was dismissed with prejudice.
Ruling/Rationale: The Superior Court granted OSD’s motion for summary judgment as to the remaining four allegations. Beginning with the student’s claim that OSD’s decision to bar her from using the girls’ restroom constituted discrimination in education under the MHRA and the MHRC’s internal regulations, the court concluded that the school’s decision was expressly permitted by MHRC internal regulation § 4.13. The court rejected the student’s argument that § 4.13 does not apply to restroom usage by transgender students because the regulation only addresses sex discrimination, not sexual orientation discrimination.
The court pointed out that the MHRC did not adopt rule § 4.13 with transgender students in mind because it was enacted prior to “sexual orientation” being added to the MHRA. It stated: “The terms ‘sex’ and ‘sexual orientation’ are closely entwined in this context because a school could not permit transgender students to use the restroom of their gender identity and still follow a policy of segregating restroom usage by sex.”
The court pointed out that the decisions of two other state courts supported its reasoning as both those courts held that their states’ human rights laws restricting restroom usage on the basis of biological sex did not violate transgender individuals’ rights under those laws. The Superior Court stressed that those other courts reached that conclusion without the benefit of a regulation permitting restroom assignment on the basis of biological sex, thus making the case in Maine stronger because the practice of sex-segregated restrooms is codified.
The court also rejected the MHRC’s contention that its interpretation of the MHRA as requiring school officials to allow transgender students to use the restroom of their gender identification was entitled to deference. The court found that such deference was due only when necessary to resolve an ambiguity in the MHRC’s regulation, and that no such ambiguity existed in § 4.13 because it explicitly permits schools to segregate restrooms by sex.
The court likewise turned down the student’s entreaty to apply Title VII’s McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1972), disparate treatment standard, pointing out that the McDonnell Douglas standard has never been applied in Maine outside the employment context. In addition, it found that even if that standard did apply, the school district would be entitled to judgment as a matter of law because the student, even though as a transgender individual is a member of a protected class, cannot show she is qualified to use the girls’ restroom because she is not a biological female pursuant to § 4.13.
Turning to the student’s claim of discrimination in education based on sexual orientation, the court examined the student’s allegation that school officials aided/abetted the peer harassment of her. It concluded the allegation was unfounded as more fully discussed in its deliberate indifference analysis. The court concluded that school officials worked diligently to find a solution for all parties involved. Specifically, it determined school officials had not assisted the male student in mistreating Susan.
The court next discussed whether the Title IX deliberate indifference standard or the Title VII standard that the harassment is known or should have been known, and whether there has been a failure to take appropriate remedial action, applies to MHRA harassment claims. It pointed out that under either standard, a plaintiff must show the harassment was “severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”
The court agreed with the student that the peer harassment she was subjected to satisfied the “severe, pervasive” standard. However, it was “unconvinced that the employment discrimination [Title VII] standard is suited to education discrimination law.” Instead, the court found that the Title IX standard in Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999), was the most appropriate. First, the court noted that applying the same standard to schools as applied to employers would create an extraordinary burden of the nation’s educational institutions. It next stressed that the deliberate indifference standard was designed to preserve the flexibility school administrators have traditionally enjoyed in regards to student discipline.
Applying the Title IX deliberate indifference to the facts, the court emphasized that courts “should refrain from second guessing the disciplinary decisions made by school administrators.” Employing the test of whether the schools’ response, or lack thereof, to the harassment was clearly unreasonable in light of the known circumstances, the court concluded that the evidence demonstrated that the school was not indifferent and its conduct was not clearly unreasonable. Among the facts noted by the court: the school developed a Section 504 plan to facilitate Susan’s needs, regularly solicited the parents’ suggestions, and considered their concerns. Given the school officials’ proactive stance and timely reaction to incidents, it concluded the school was not “deliberately indifferent” to the harassment Susan experienced as a matter of law.
In regard to the allegation of discrimination in education based on harassment through an “eyes on” policy, the court stated that having already concluded that the school was not deliberately indifferent to the male student’s harassment of Susan, it would not allow her to pursue the same argument through an “eyes on” program challenge. Lastly, it dismissed the discrimination in public accommodations based on harassment and the “eyes on” policy claim on the same basis.
Doe v. Clenchy, No. 09-201 (Me. Nov. 20, 2012)
[Editor's Note: As reported in the Bangor Daily News on November 20, 2012, Judy Harrison quoted the court as saying:
"The court is not unsympathetic to [the girl’s] plight, or that of her parents. It is no doubt a difficult thing to grow up transgender in today’s society. This is a sad truth, which cannot be completely prevented by the law alone. The law casts a broad stroke where one more delicate and refined is needed. Although others mistreated [the girl] because she is transgender, our Maine Human Rights Act only holds a school accountable for deliberate indifference to known, severe and pervasive student-on-student harassment. It does no more.”
According to the news story, Bennett Klein of Gay and Lesbian Advocates and Defenders (GLAD) vowed to appeal the decision the to Maine Supreme Judicial Court. “I think [the Superior Court] has carved a huge hole in legal protections established by the Legislature that makes it very difficult for a transgender girl to get an education,” Klein said. “That is not what was intended when the Legislature passed the gender identity nondiscrimination law.” Attorney Melissa Hewey, who represented Clenchy and the district, praised the court’s decision and pointed out a footnote in which the judge recognized the difficulties teachers and administrators face. “The judge was able to recognize the particular challenges faced by school personnel, who must ‘engage in the delicate process of engaging the adolescent mind to effectuate change,’ which, he said, ‘requires the application of complex and ever developing psychological principles,’” she said.
In GLAD’s press release on the ruling, Jennifer Levi, director of GLAD’s Transgender Rights Project, said: “We always knew that the trial court was just the first step and that this lawsuit would ultimately be decided by Maine’s highest court. Under Maine law, a transgender girl – whom the school acknowledged is a girl – needs to be able to live consistent with her gender. The school acknowledged that Susan could not otherwise progress in her academic development.”
In September 2012, Legal Clips summarized an article in the Bangor Daily News, which reported on oral arguments in this suit involving transgender discrimination. The article pointed out it is the first case in Maine to address a transgender student’s right to use the bathroom of the gender with which he or she identifies. ]