When Nicole Maines began using the girls bathroom at her Orono middle school, the transgender preteen’s mundane act was met with confusion, fear and prejudice by school officials, classmates and their parents. It took years and a landmark court decision, but Maines’ right to use the bathroom aligning with her gender identity was eventually confirmed.
The case, which culminated in a Maine Supreme Judicial Court ruling in 2014, could not reasonably be expected to end the fear and prejudice surrounding transgender rights, but at least it should have stopped the confusion over how transgender students must be treated in Maine schools.
For that to be the case, however, the rules within the Maine Human Rights Act must be updated to reflect the court’s decision, a process that now is being held up unnecessarily by Gov. Paul LePage.
As a result, the wishes of Maine voters are being set aside, and schools and students have been left vulnerable.
CLEAR INTERPRETATION
Sexual orientation, including gender identity and expression, were added to the Maine Human Rights Act by voters a decade ago, but the process of updating the rules that provide guidance to schools was postponed while the Maine Human Rights Commission waited for the court system to interpret the law as part of Maines’ case.
The subsequent decision could not have been more clear: Under the law, transgender girls are girls, transgender boys are boys, and that is to be reflected in how they are provided educational and extracurricular opportunities, and how they are addressed by school administrators, teachers and classmates.
Moreover, it is the school’s responsibility to facilitate that inclusion, and to protect students from harassment and discrimination.
The commission, in conjunction with the Department of Education, wrote those rights into a proposal last October and sent it to the governor, who as a matter of procedure is supposed to sign it over to the secretary of state.
From there, new rules go to the Legislature for final approval, allowing the commission to tell schools exactly how they are supposed to handle situations similar to Maines’, and to hand down penalties when the rules are not followed.
POWER OF LAW
Instead, LePage has refused to sign off on the proposal, citing a section of the Maines decision. He appears to be misreading the decision, but it should also be noted that LePage disagrees with the Maines decision, even going so far as to file a brief in support of a Virginia school system that wants to ban a transgender boy from using the boys bathroom.
In any case, as a result of LePage’s refusal, the commission can only give schools guidelines, which are merely suggestions that do not carry any penalties.
Fortunately, many schools throughout Maine already have adopted rules that mirror the commission’s proposals. But treating transgender students according to the protections afforded by the law should not be voluntary.
Unfortunately, the fear and prejudice Maines encountered still exists, and the power of law is necessary to make sure transgender students are treated the same as their peers. Clear rules and strong penalties make it far less likely that the presence of a transgender student will cause the same hysteria it did in Orono nine years ago. They leave no doubt how officials must act in order to avoid a lawsuit, and provide an easy retort to anyone who harbors hostility and bias toward transgender students.
Maines was forced to confront those ill feelings because the law was not clear. Now that it is, other transgender students should not have to refight that battle.
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