(CN) – A school should have let a transgender fifth grader use the girls’ restroom, the Maine Supreme Court ruled, the apparent first ruling of its kind from a state court.
Susan Doe, as she is named in the court record, is now 16 years old. Though born biologically male, Susan has expressed a female identity since she was 2.
Her parents sued Regional School Unit 26 in Orono, Maine, in 2009 after school officials required Susan to use a staff restroom instead of the girl’s restroom.
The couple claimed that sections of the Maine Human Rights Act enacted in 2005 regarding transgender students conflicted with state laws regarding sanitary facilities at schools.
A Penobscot County judge later granted the school summary judgment, but the Maine Supreme Court concluded, 5-1, Thursday that Susan should have been able to use the facilities for the gender with which she identifies.
The majority emphasized that its reversal is not meant to allow anyone to “demand access to any school facility or program based solely on a self-declaration of gender.” Rather, schools must have a carefully developed program to sensitively address gender identity issues, such as those presented in this case, according to the ruling.
“Our opinion must not be read to require schools to permit students casual access to any bathroom of their choice,” Justice Warren Silver wrote for the majority. “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.”
In this case the school had forced Susan to use the staff restroom only after a male student complained that she was being allowed to use the girls’ bathroom.
“Based upon its determination 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 opinion states. “In so doing, the school provided her with the same access to public facilities that it provided other girls.”
Banning Susan from the girls’ bathroom after her classmate complained was discriminatory, the court found.
“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,” Silver wrote. “She was treated differently from other students solely because of her status as a transgender girl.”
In a dissenting opinion, Justice Andrew Mead agreed with the “broad principle” of letting transgender students use the restroom of their identified gender but disagreed with the conclusion that the school illegally discriminated against Susan.
Preventing the denial of access to any public bathroom on basis of gender, as the majority’s holding does, is an “extraordinary departure” from the custom of segregating public bathrooms by sex, according to the dissent.
“Considering the issue presented here, transgendered persons who live their lives as a member of the sex with which they identify face unique challenges with regard to public multiple-user bathrooms,” Mead wrote. “It is simply unreasonable to expect a transgendered person to enter a bathroom designated for use by the sex with which they do not identify. Doing so is likely to provoke confrontation, or even violence. If transgendered people are prohibited from using bathrooms designated for the sex with which they identify, they are left with no practical recourse in most public settings. This result is simply untenable.”
Gay & Lesbian Advocates and Defenders says this ruling is the first by any state court allowing transgender students to use the bathroom of the gender with which they identify.
Jennifer Levi, director of GLAD’s Transgender Rights Project and attorney for the plaintiffs, hailed the ruling as a “momentus decision” for transgender youth.
“A transgender girl is a girl and must be treated as such in all respects, including using the girls’ restroom,” GLAD senior attorney and co-counsel Bennett Klein said Thursday. “This ruling is consistent with what educators and human rights commissions – including the Maine Human Rights Commission – around the country have concluded.”
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