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Maine Supreme Court Sides With Transgender Student on Bathroom Access

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A Maine school violated state nondiscrimination law when it required a 5th grade transgender student to use a staff bathroom instead of allowing her to use a girls' bathroom, the state's highest court said in a 5-1 ruling issued Thursday.

Nicole Maines, identified as Susan Doe in the complaint, sued the former Orono School District, claiming that the Maine Human Rights Act required the school to allow her to use the girl's restroom, despite the fact that she was born a boy. She was joined in the lawsuit by her family and the Maine Human Rights Commission.

It was the first time the state's highest court has weighed in on how the state law—particularly 2005 amendments that prohibit discrimination based on sexual orientation in public accommodations, educational opportunities, employment, and housing—applies to transgender students in schools, the ruling says.

"Particularly where young children are involved, it can be challenging for a school to strike the appropriate balance between maintaining order and ensuring that a transgender student's individual rights are respected and protected," the ruling says.

It's a discussion that's happening around the country as schools work to address the needs of a small number of transgender students, who have become more vocal in the wake of highly publicized court cases, advocacy groups said. Advocates of a new California law that clearly dictates access to single-sex facilities for transgender students have said 17 states that have more general laws that prohibit discrimination on the basis of gender identity are also required to allow students to use facilities that align with their gender identity, even if it differs from the sex on their birth certificates. A group that has sought to overturn that California law through a petition effort argues that it violates the privacy of other students.

Maines' family worked with the schools to create a plan that included the use of feminine pronouns and girls restrooms when she initially began identifying as female, the ruling says. 

"Susan began the fifth grade in September 2007. Her use of the girls' bathroom went smoothly, with no complaints from other students' parents, until a male student followed her into the restroom on two separate occasions, claiming that he, too, was entitled to use the girls' bathroom. The student was acting on instructions from his grandfather, who was his guardian and was strongly opposed to the school's decision to allow Susan to use the girls' bathroom. The controversy generated significant media coverage. As a result of the two incidents, the school, over the Does' objections, terminated Susan's use of the girls' bathroom, requiring her instead to use the single-stall, unisex staff bathroom. That year, Susan was the only student instructed to use the staff bathroom."

The ruling emphasizes that the decision must be viewed in the context of the student's gender identity and an associated psychological condition, which were both verified by health care professionals.

"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 [Maine Human Rights Act]."

Photo: Transgender student Nicole Maines, center, with her father Wayne Maines, left, and brother Jonas, speaks to reporters outside the Penobscot Judicial Center in Bangor, Maine, in June, 2013. The Maine Supreme Judicial Court ruled Thursday that Nicole Maines should have been allowed to use the bathroom of her choice in 2009 after school officials required her to use a staff bathroom instead of the girls' restroom.-- Robert F. Bukaty/AP-File

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