Doe v. Regional Sch. Unit 26, No. 12-582 (Me. Jan. 30, 2014)
Abstract: The Maine Supreme Judicial Court, in a 6-1 split, has ruled that a school district violated a transgender student’s rights under the Maine Human Rights Act (MHRA) when it prohibited her from using the girls’ communal restroom at school.
Facts/Issues: “Susan” is a transgender student who attended Asa Adams Elementary School in the Regional School Unit 26 district (RSU). Susan is a biological male who began identifying as a female in the third grade. By fourth grade, Susan was dressing and appearing exclusively as a girl. In the third and fourth grades, the students use single stall bathrooms, segregated by sex, and Susan was allowed to use the girls’ single stall bathroom. At the time Susan was completing 4th grade, she received a diagnosis of gender dysphoria. Gender dysphoria is the medical term for psychological distress resulting from having a gender identity different from the sex that one was assigned at birth. The school accepted this diagnosis.
During Susan’s fourth-grade year, the school implemented a Section 504 plan to address Susan’s gender identity issues and her upcoming transition to the fifth grade, where students use communal bathrooms separated by sex. The school counselor expressed to the Section 504 team that, for a transgender girl like Susan, using the communal girls’ bathroom was the best practice. The team agreed that requiring Susan to use the boys’ bathroom was not an acceptable option and the principal later testified that it would not have been safe for Susan to do so. The minutes of the 504 meeting reflected the team’s conclusion that it was important to Susan’s psychological health that she live socially as a female and the recommendation that Susan use the girls’ communal bathroom in the fifth grade.
Susan’s fifth grade year started as planned, with no issues arising from Suan’s use of the girls’ communal bathroom. A male student, however, following his grandfather’s direction, asserted his right to use the girls’ restroom and followed Susan into girls’ bathroom on 2 occasions. The situation at the school become public, with significant media coverage. School officials then terminated Susan’s use of the girls’ communal bathroom and required her to use the staff restroom.
When Susan moved to middle school, RSU continued to impose the ban on Susan’s use of the girls’ restroom while still allowing her to use the staff bathroom. After the school year ended, Susan’s parents moved to another school district.
In late 2008, Susan’s parents filed a complaint with the Maine Human Rights Commission (MHRC) alleging that RSU violated the Maine Human Rights Act (MHRA) in not allowing Susan to use the girls’ communal bathroom. The MHRC ruled unanimously in Susan’s favor, and instituted a suit against RSU in Superior Court asserting claims for unlawful discrimination in education and in a place of public accommodation on the basis of sexual orientation. The Superior Court granted RSU’s motion for summary judgment, and the MHRC and Susan’s parents appealed.
Ruling/Rationale: The six justice majority vacated the Superior Court’s decision. The majority’s ruling rested on an analysis of two state laws, the MHRA and a state statute in the Sanitary Facilities subchapter of the code that regulates restroom facilities in schools.
The public accommodations provision of the MHRA provides:
It is unlawful public accommodations discrimination, in violation of this Act . . . [f]or any public accommodation or any person who is the . . . superintendent, agent, or employee of any place of public accommodation to directly or indirectly refuse, discriminate against or in any manner withhold from or deny the full and equal enjoyment to any person, on account of . . . sexual orientation . . . any of the accommodations . . . [or] facilities . . . of public accommodation . . . .
The MHRA defines places of public accommodation to include public schools. The definition of discriminate under the MHRA “includes, without limitation, [to] segregate or separate” and the definition of sexual orientation includes “a person’s actual or perceived gender identity or expression.”
The court noted that the school initially “determin[ed] 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.” The school district’s change of position, however, violated the MHRA. “RSU 26’s later decision to ban Susan from the girls’ bathroom, based not on a determination that there had been some change in Susan’s status but on others’ complaints about the school’s well-considered decision, constituted discrimination based on Susan’s sexual orientation. She was treated differently from other students solely because of her status as a transgender girl. This type of discrimination is forbidden by the MHRA.”
The court rejected RSU’s argument that the statute concerning sanitary facilities in schools superseded the MHRA. Section 6501 of the sanitary facilities law states: “A school administrative unit shall provide clean toilets in all school buildings, which shall be…separated according to sex and accessible only by separate entrances and exits.” The court determined that the two statutes could be reconciled. Noting that the sanitary facilities provision does not address “the manner in which transgender students should be permitted to use sex-separated facilities,” the court concluded that “each school is left with the responsibility of creating its own policies concerning how these public accommodations are to be used. …Although school buildings must, pursuant to section 6501, contain separate bathrooms for each sex, section 6501 does not and school officials cannot dictate the use of the bathrooms in a way that discriminates against students in violation of the MHRA.”
The majority included a qualification in its holding that may be important in applying the decision to future cases:
In vacating this judgment, we emphasize that in this case the school had a program carefully developed over several years and supported by an educational plan designed to sensitively address Susan’s gender identity issues. The determination that discrimination is demonstrated in this case rests heavily on Susan’s gender identity and gender dysphoria diagnosis, both of which were acknowledged and accepted by the school. The school, her parents, her counselors, and her friends all accepted that Susan is a girl. Thus, we do not suggest that any person could demand access to any school facility or program based solely on a self-declaration of gender identity or confusion without the plans developed in cooperation with the school and the accepted and respected diagnosis that are present in this case. Our opinion must not be read to require schools to permit students casual access to any bathroom of their choice. 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, denying access to the appropriate bathroom constitutes sexual orientation discrimination in violation of the MHRA.
The dissent and concurrence shared an interesting interpretation of the majority’s decision–under the court’s ruling men can use women’s restrooms and vice-versa. The concurrence explained how that outcome results from the majority’s reasoning:
Specifically, the Court has concluded, as it must based on the statutes, that discrimination in the public accommodation of communal bathrooms is prohibited based on sexual orientation. The statute requiring that result also prohibits discrimination based simply on “sex.” Thus, the next logical step given the Court’s inevitable interpretation of the existing statute is, as the dissent points out, the assertion that access to the public accommodation of designated communal bathrooms cannot be denied based on a person’s sex…. Put simply, it could now be argued that it would be illegal discrimination for a restaurant, for example, to prohibit a man from using the women’s communal bathroom, and vice versa.
The dissent said “the plain language of the MHRA and the unavoidable implications of the Court’s decision set a well-established societal custom (segregation of public bathrooms by sex) and the MHRA on a collision course.”
Both the dissent and concurrence supported a determination that RSU violated the MHRA, but called on the Maine legislature to amend the Act to prevent the result they thought was an inevitable extension of the majority’s ruling.
Doe v. Regional Sch. Unit 26, No. 12-582 (Me. Jan. 30, 2014)
[Editor’s Note: In June 2013, Legal Clips summarized an ABC News story on the oral arguments presented to the Maine Supreme Judicial Court in this appeal.
In June 2013, Legal Clips reported on an article in The New York Times regarding a similar ruling by the Colorado Division of Civil Rights, finding that a school district violated that state’s civil rights act when it refused to let a transgender elementary student use the girl’s bathroom.]