Maine Panel: Trans Student Entitled to Restroom Privileges

A trans student in Maine has won the right to use the girls' restroom--again.

The parents of the student, who was born physiologically male but identifies as female, had won an earlier complaint against the school district when the child was a fifth grader and denied use of the girls' room. Now the student's family has won a second case brought against the school district for having denied her use of the girls' restroom when she was in the sixth grade in 2008-2009, reported local newspaper the Bangor Daily News.

The first complaint was leveled at Asa Adams Elementary, which is part of the Orono school district. The second complaint was brought against Orono Middle School. Both cases were decided by the state's Human Rights Commission, and both cases were decided in favor of the student.

The student's parents wrote that the school had "implicitly isolat[ed]" their child by requiring her to use a gender-neutral restroom, a policy that the parents said "alienat[ed her] from other students." The parents said that their child was ostracized. The child no longer goes to school in the Orono school district.

The school district countered that it had made a number of accommodations to the student short of allowing her to use the girls' restroom, including providing a restroom and locker room for the child's own use and meeting frequently with her parents. The school district's statement noted that the student "appeared to be happy and involved in the school community."

The panel noted that the student had been subjected to harassment and ridicule, and referenced an occasion on which a boy hurled anti-gay invective at her.

The Maine Human Rights Commission had contemplated drafting non-discrimination policies for sexual minorities following the earlier decision in favor of the transgendered student, but at that time the lawyer for Orono School Department foresaw difficulties for Maine schools should they attempt to implement such policies. Meantime, some parents (and grandparents) took exception with the ruling, saying that boys and girls belong in their designated washrooms.

However, for GLBT equality groups, the Commission's finding is a step forward for a poorly understood population that is often subjected to vilification and misunderstanding. Transgendered individuals perceive, innately and unchangeably, that they are of a given gender--even if their physical characteristics belong to the other gender. Thus, a transgendered child may believe, and insist, that she is a girl, even if anatomically she is male.

But transgendered individuals may not necessarily be homosexual; indeed, some men who seek gender reassignment are heterosexual and continue to pursue relationships with women even after they have, themselves, transitioned physically to the female gender.

Such physical transitions often, but not always, involve surgical procedures. They also involve hormone treatments and lifestyle changes: even without surgery, a woman in a man's body may begin wearing women's clothing and makeup. Gender transitions also reportedly give a sense of peace and rightness to transgendered individuals, who may never have felt comfortable in the gender roles and clothing assigned to them by society at large. The incidence of transgenderism is low, but transgendered people are common enough that such debates and controversies are becoming more frequent.

Because transgendered individuals experience a deep-seated and persistent conviction that they actually belong to the other sex, regardless of their anatomical characteristics, very young children might declare themselves to be girls, or boys, to the consternation of their parents--who naturally may be inclined to see their child's gender according to his or her anatomy, rather than the child's internal sense of who he or she fundamentally is.

The depth and duration of a transgendered child's conviction of belonging to the gender opposite his or her anatomy far exceeds any transient phase when a child might pretend to be the other gender. In many cases, transgendered adults recall being convinced from early life of their true gender identification.

But society at large does not yet comprehend the differences between sexual identity and sexual orientation, and often the idea that a child can have a clear and distinct sense of his or her own gender is dismissed. Nonetheless, some child health professionals have begun to recognize that children may know better for themselves who they are than the adults around them--and some advise that parents, educators, and other caregivers allow the children to take the lead in such cases.

There are practical considerations to be taken into account, however, pointed out attorney Melissa Hewey, who represented the school department. In a June 30, 2009, Bangor Daily News article, Hewey said of the panel's initial finding, "I'm not sure that it takes into account practicalities that face educators around the state. You can understand [the ruling] intellectually. You can agree with it intellectually. But practice is sometimes different--and I think that's what may have escaped some people in this case."

Though the ruling might result in heated debate and uncertainties about how to accommodate transgendered school children, the Maine Civil Liberties Union's legal director, Zachary Heiden, saw the ruling as a mark of progress, the article reported. "This ruling is a huge step forward for a vulnerable population that is entitled to the full protection of the law," said Heiden. "There will always be voices who claim we're not ready, we're not there yet, the time to end discrimination is next year, or next session. But victims of discrimination should not have to wait."

Ripples in the Wider World

The issue sent ripples through Maine's wider community, with retailers worrying that their businesses would have to renovate in order to create gender-neutral restrooms. Others expressed the fear that sexual predators would use any non-discrimination law as cover to enter women's restrooms in order to spy upon or sexually assault girls and women.

Such policies are again under consideration, but any action would not take place under after the midterm elections. The politically sensitive issue had been used earlier by anti-gay groups in Maine in an attempt to repeal all of the state's non-discrimination laws.

The issue has also made political waves around the country, with anti-gay activists using the idea of men in women's restrooms as a political cudgel and calling for laws enforcing "biology-based bathroom" usage.

That strategy was in evidence in the summer of 2009 in Massachusetts, as the anti-gay Massachusetts Family Institute framed the issue in terms of any applicable non-discrimination legislation being tantamount to a "bathroom bill." The group's efforts had been sparked by a proposed bill that would have extended the state's existing non-discrimination and hate crimes laws to cover transgendered individuals.

The reduction of complex non-discrimination laws to issues of restroom use has become a commonplace strategy among anti-gay activists, noted Ed Brayton in an op-ed posted at Dispatches from the Culture Wars. Brayton noted that GLBT issues were being routinely reduced by opponents of equality to questions of restroom use by transgender people.

"We know this is a national strategy because we've seen the same pamphlets and commercials show up in city after city, from Gainesville, Florida to Kalamazoo, Michigan," Brayton wrote. "One famous one showed a shifty-looking man looking vaguely evil as he follows a little girl into a girl's bathroom, presumably to do something evil to them.

"None of this is reality, of course," Brayton continued. "There isn't a single documented case anywhere in the nation, as far as I know (and I've asked religious right leaders making this claim for examples and never heard any), of a transgendered person or a cross dresser (which is not the same thing) committing any crime in any bathroom anywhere in the country. In fact, the only examples they can come up with are of heterosexual men doing it. Do they really think that men who want to spy on or molest women in bathrooms are going to go have sex change operations to make it easier?"

Brayton went on to question the use of the argument centered around "biology-based bathrooms," writing that the argument "is being made by people who are, of course, profoundly ignorant of biology--and in particular, of the biology of transgender, transsexual and intersexual people." Brayton noted that one out of one thousand men in America "is born with XXY chromosomes. Are they male or female? Which bathroom should they use? The anti-gay bigots want the world to be a simple black and white place where everyone is obviously male or female, but the real world just doesn't line up. Yes, most people fit comfortably into those categories, but a significant minority do not. And they didn't choose to be that way." Brayton questioned whether opponents of transgender students using the facilities with which they are comfortable "really believe that a high school kid is going to pretend to be transgendered in order to be allowed to use the girl's bathroom so they can sneak a peek? Seriously? Do they not recognize the abuse taken by any kid who is even perceived as being less than perfectly male or perfectly female?"

In the world of adults, the question of who is allowed to use the facilities is sometimes not even an issue. One reader of Brayton's op-ed commented, "My wife and I had the opportunity to go out the other night. We spent some time at a rather high-end bar in NYC. There was only one bathroom. It was all stalls with floor to ceiling separators. Im sure this would freak out the wingnuts as well, but the 'jaded NYers,' as well as the Bridge and Tunnel crowd didnt seem to care."

But the question inevitably comes back to the needs of transgendered individuals, who may be just as uncomfortable in the restrooms they are legally compelled to use as non-transgendered individuals are about having them in the restrooms where they feel they belong. In Vermont, a trans teenager argued that gender-neutral, single-user facilities could be used to meet the needs of transgendered students. "It was the fear and apprehension of possibly having to use the bathroom during the school day that caused me the most harm," said Kyle Giard-Chase in a Sept. 23, 2009, Associated Press article. "By eighth grade I had almost made a game out of waiting for the end of the day so I could use the bathroom at my own home."